States Lock Up Social Media from Employers

Last month, Illinois became the 25th state to enact strict legislation relating to social media privacy in the workplace with the passage of HB 4999/Public Act 99-610, which was signed by Republican Gov. Bruce Rauner on July 22. Effective January 1, the new law will significantly strengthen existing law by prohibiting employers from requesting, requiring or coercing an employee or applicant to provide a username and password to gain access to their personal online accounts. It will also prohibit employers from requesting, requiring or coercing employees or applicants to authenticate or access personal online accounts in the presence of the employer or to join an online account established by the employer.

Since the explosion of social media use in the past decade, state law has lagged in keeping up with its rapid evolution; the first of these laws was only enacted in 2012. While social media has certainly had major effects on the way we communicate, it has also raised a number of serious questions relating to personal privacy that legislators have struggled to strike a balance on. This specific type of social media privacy legislation has attempted to place a wall between employers and employees by shielding the employee’s privacy to a degree. It does not, however, prevent employers or prospective employers from viewing or accessing any publicly held out information about an employee on a social media site.

The hallmarks of this type of legislation typically bear similar trademarks – they seek to protect the privacy of citizens while both in the workplace and applying for jobs by prohibiting employers from requiring the employee or prospective employee from providing access to any personal social media accounts. In addition, 15 states have gone even further, also prohibiting educational institutions from requiring a student to provide any kind of access to social media accounts, according to NSCL.

To date Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, West Virginia and Wisconsin have all enacted laws restricting employers from accessing the social media accounts of employees or prospective employees.

While state legislatures are nearly all adjourned until the 2017 sessions, social media privacy bills remain pending in Massachusetts and Ohio, while a total of 17 states considered such bills this year. As social media continues to become a more and more ubiquitous part of everyday life, expect state legislators to continue examining this and other online privacy related topics in the upcoming 2017 legislative sessions.