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Employer Practice of Requesting Social Media Access May Be in Jeopardy


April 3, 2012

On March 29, the Illinois House of Representatives passed House Bill 3782, which if passed by the State Senate, will make it unlawful for employers to request employees or prospective employees to provide their social media passwords or account access information.  The proposed legislation applies to both public and private employers doing business in Illinois, and would amend the Illinois Right to Privacy in the Workplace Act.

It has become common for employers to screen job applicants or investigate employee misconduct by reviewing social media sites such as Facebook, MySpace or Twitter.  However, many of these sites have privacy settings that allow their users to limit access to their personal profiles and postings to friends and relatives.  As a result, a growing number of employers have started requiring job applicants to disclose their social media passwords or provide full access to their accounts during the interview process, which has recently sparked a significant amount of public controversy.

There are a wide range of opinions when it comes to social media privacy and the workplace.  Some maintain that employers are justified in conducting comprehensive social media background checks to minimize their business risks.  Others argue that job applicants should not have to choose between pursuing a job opportunity and sharing sensitive personal information.  Facebook recently issued a statement opposing the practice of employer-mandated access to social media as an intrusion on privacy.  

There are presently no federal or state laws that expressly prohibit employers from requesting or requiring social media information.  However, several federal lawmakers are urging the U.S. Department of Justice to investigate whether the employer practice violates any federal statutes, such as the Stored Communications Act or Computer Fraud and Abuse Act.  Illinois is not alone in proposing legislation that would explicitly prohibit the practice.  Similar bills have been proposed in Congress and in several other states.

The impact of social media on labor and employment law continues to evolve.  It remains to be seen whether and how the courts, legislatures and governmental agencies will regulate employers’ use of social media.  Employers who use social media as a human resources tool should exercise caution when reviewing these websites.  For example, social media background checks should ideally be performed by trained human resources professionals and used in a consistent manner to reduce the risk of discrimination claims.  As a general rule, employers should make sure that any pre-employment inquiry about a candidate is job-related.  Reviewing a candidate’s social media information may expose the employer to information about the candidate that it was not intending to obtain – such as the candidate’s race, age, religion or sexual orientation.  Employers should also attempt to independently verify information obtained from social media sites before relying on that information to make employment and personnel decisions.  Further, as previously reported, employers should be aware of the NLRB’s positions on social media, which increase the potential of unfair labor practice charges for both union and non-union employers. 

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