On May 22, 2012, the Illinois legislature passed a bill to prevent employers from requesting Facebook and other social networking website passwords from their current and prospective employees. The proposed measure is pending before Governor Quinn for final approval.
The bill, HB3782, amends the Illinois Right to Privacy in the Workplace Act to make it unlawful for an employer to request a password or other account information in order to access a current or prospective employee’s social networking website. Under the bill, employers are permitted to maintain lawful workplace policies relating to use of the Internet, social networking sites and electronic mail. The bill also permits employers to access information regarding current and prospective employees that is in the public domain and obtained in compliance with the Right to Privacy in the Workplace Act.
Illinois is one of several states to consider legislation aimed at protecting social networking privacy in the employment realm. Maryland, New York, California, and Washington have introduced similar legislation.
Congress also has shown interest in the topic, introducing similar legislation just last month. Like the Illinois bill, the federal proposal prevents employers from forcing current or prospective employees to turn over their social networking passwords.
The Illinois and federal bills would curb employers’ attempts to access Facebook pages or other social networking sites used by current and prospective employees to elicit information that might be helpful in making employment decisions. On the other hand, in the process, employers also might obtain information that could expose them to potential discrimination or other claims. Tapping into the wealth of information available on Facebook, for instance, can open the door for employees and job applicants to claim employers obtained information about their protected status, such as their religion, disability, and age, and used that information to make an adverse employment decision. Thus, the Illinois and federal bills preventing employers from accessing such information might save employers from the risk of unnecessary exposure to potential claims from current and prospective employees.
It is expected that Governor Quinn will sign HB3782 and it will become law. Employers should review HR practices now and advise recruiters and other staff who interact with employees and prospective employees to advise them of this legislative change and ensure compliance.© MICHAEL BEST & FRIEDRICH LLP