Legislation limiting employer’s access to employee social media blossoms

August 18, 2014

Facebook Magnifying glassNetworking is essential to finding a job; especially in a competitive field and a tough job market. Good networking skills can lead to a job offer, but an individual’s activities on social networking sites could prevent that offer from being made. In the past, employers used applications, questionnaires, interviews and references to get a good idea of a person they were interested in hiring. Over time, background checks regarding criminal history and credit reports also became acceptable steps in the hiring process. As the popularity of websites like Facebook, Twitter and LinkedIn grew, employers naturally began running internet searches as well.  In 2006, NBC news reported more than 77% of employers were using the internet to find out more about a job applicant, and 35% had dismissed candidates based on what they found. See the NBC transcript at 2006 WLNR 8296767.

In an effort to prevent negative effects of their online activity, social media users began adding privacy settings to their profiles. Employers responded by asking employees and applicants to provide their social media usernames and passwords. Requesting such information might constitute an invasion of privacy, and many states have enacted legislation restricting the practice.

The National Conference of State Legislators maintains an excellent 50-state survey on the topic.  It shows that nineteen states enacted legislation in the last two years regarding employer access to social media  (AR, CA, CO, DE, IL, LA, MD, ME, MI, NJ, NM, NV, OK, OR, TN, UT, VT, WA, WI). Discussion of federal legislation also continues. The laws in these states universally outlaw the request of usernames and passwords from applicants and employees although California and Colorado make exceptions for public employers.  Colorado’s definition of “employer,” for example, does not include the Department of Corrections, County Corrections Departments, or any state or local law enforcement agency. In addition, some bills ban the practice of “shoulder surfing” (i.e., asking an employee to sign into their profile in the presence of an employer) and, the requirement that an employee/applicant add an employer to their social media contact list (a practice I refer to as “forced friending”). See Colorado H.B. 1046, Delaware H.B. 308, and Illinois H.R. 3782.

Employers contend this access is needed to learn as much about the candidate as possible. See for example, Jessica Fink’s, In Defense of Snooping Employers16 U. Pa. J. Bus. L. 551. If the profile reveals inappropriate or illegal activity, the employer can avoid hiring a potential liability. Also, if a candidate has an issue with this information being requested, they could simply elect not to have a social media account. These are valid points, but there is also legitimate concern that the personal information contained in these profiles will be used to discriminate against applicants. For instance, Facebook profiles can reveal a multitude of private information such as gender, age, religion, sexual orientation, marital status, political preferences, interests and activities, personal pictures and home videos. Further, arguments that social media accounts are optional do not provide adequate support for invading the privacy of those who choose to have one. As Senator Leland Yee (D. San Francisco), a strong advocate for federal legislation, states, “No boss should be able to ask for this kind of personal information” and further “[One does not] go on a fishing expedition when (people) apply for a job.” Senator Yee argues for similar protection in the context of educational institutions, and states are enacting laws in this area as well.

While courts have yet to directly address this issue, state legislatures are taking appropriate steps in providing a framework for courts when the topic eventually makes its way to litigation. Although legislation has failed in a handful of states many are currently considering password protection laws. For help tracking legislation pending in your state, contact a Westlaw Reference Attorney at 1800.REF.ATTY.