New law protects social media passwords

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

Gov. Patrick J. Quinn recently signed a bill into law that prohibits employers from asking employees or job applicants for their online account passwords. The law comes in response to the growing trend among employers seeking log-in details of employees’ social media accounts, especially Facebook and Twitter. This has been viewed by some employees and civil liberties activists as a serious invasion of privacy.

Illinois is only the second state to enact such a law after Maryland brought in a similar measure earlier this year. The law will take effect on Jan. 1, 2013, and penalties for employers in civil cases would start in the $100 – $300 range.  

The doctrine of employment at-will in this country has a lot of advantages. However, one of the main disadvantages is that it is open to abuse in certain cases. The legislature has obviously intervened to prevent discrimination by employers based on race, sex and religion. Allowing an employer to fire an employee for not providing the employer with the means to access a potentially huge amount of the employee’s private personal information is an example of a scenario where an abuse of the system can take place. Indeed, asking for the details in the first place may facilitate discrimination where an employer learns something private about a candidate’s religion, for example.

The prevalence of social media and the wealth of information social media accounts contain about users make it easy to see why employers would want to access the accounts of their employees. It is not uncommon to research a potential employee online even before a decision has been made to interview.  Interestingly, one-third of employers who said they research job candidates’ social media profiles said they have found some negative information on social media accounts that caused them not to hire certain candidates.

Employers cited a large number of reasons for checking social media profiles, including whether the candidate presents himself or herself professionally, whether they would be a good fit and whether the candidate is well-rounded. Reasons for not hiring particular candidates included the posting of provocative content, evidence of alcohol or drug use and posting of discriminatory content.

However, when the content is publicly available, job candidates can only blame themselves if a potential employer sees it. This is not the case when an employer seeks access to information the candidate/employee may not have disclosed to anyone previously. Indeed, Senate Minority Leader Christine Radogno has compared employers asking for online account passwords to asking for the keys to a person’s home.

This is a positive development that is necessary to protect people’s privacy from infringement in the digital age, and several other states are now considering following suit. Particularly in the current economic climate when jobs are already hard enough to come by, job seekers may feel forced into giving away very private, personal information. This law offers them a measure of protection.

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