iAt two recent seminars hosted by Much Shelist, attendees asked attorneys the same pointed question, "Can I ask job candidates to provide their Facebook passwords?" At that time, our answer was, in words or substance, "Legally, you can, but there may be unintended consequences if your perusal of their Facebook page reveals information that you later wish you didn't know."
Our answer to that question has now changed, as earlier this month, Gov. Pat Quinn signed an amendment to the Illinois Right to Privacy in the Workplace Act that makes it illegal for an employer to (a) "request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website" or to (b) "demand access in any manner to an employee's or prospective employee's account or profile on a social networking website."
This legislation, which takes effect January 1, 2013, contains no exceptions to the prohibitions outlined above, not even for jobs requiring background checks. However, it expressly allows employers to maintain lawful workplace policies governing the use of employer-owned computers, as well as email and Internet resources, and to monitor employees' use of employer-owned computers and email.
The law also expressly allows employers to obtain information about employees and job candidates that is "in the public domain." It does not prohibit employers from viewing employees' or job candidates' social media pages if they already have access (for example, if the employee or candidate previously "friended" a supervisor), or if the social media page is "public." However, even this may be dangerous for employers making hiring and other employment decisions. Depending on the number of individuals an employer employs, Illinois and/or federal law may prohibit that employer from discriminating against employees or candidates based on protected characteristics, including race, gender, national origin, age, disability (or association with a disabled individual), religion, pregnancy, marital status, or military service. Since this type of information may be discernible on a candidate's or employee's social media page, a candidate who is not hired, or an employee who is disciplined or otherwise subject to adverse employment action, may claim discrimination, even if protected characteristics learned on a social media page had nothing to do with the employer's decision.
Illinois is now the third state to pass similar legislation, and at least ten other states have similar legislation pending. In addition, in April 2012, the Social Networking Online Protection Act (SNOPA) was introduced in the U.S. House of Representatives. If passed, this law would impose similar restrictions on employers under federal law.
In light of this new law, Illinois employers should keep the following guidance in mind:
- Do not ask employees or job candidates for their social media passwords or information that would identify their social media account or profile (such as their screen name).
- Do not request or demand that employees or job candidates allow you to view or give you access to their social media account or profile even without disclosing their passwords.
- In any event, keep in mind that any information you learn about an employee's or job candidate's protected characteristics–whether through social media or otherwise–may be used against you if the individual suffers an adverse employment action.
Illinois employers also should review their hiring practices and make sure all individuals involved in the hiring process are aware of these new prohibitions and comply with them.
