SOCIALMEDIAARTICLE
016
DEMANDING ACCESS TO
SOCIAL INFORMATION MEDIA
ANd PERSONAL
IS IT LEGAL?
AUTHOR: Patrick Gorman
EMAIL: [email protected] BIO: jshfirm.com/patrickcgorman
Employers, both public and private, are using social media
websites such as Facebook, Twitter, Instagram, and LinkedIn,
to learn about prospective or current employees. Some
employers have even gone so far as to request that the
prospective employee provide them with usernames and
passwords. Employers argue that this information is needed
in order to perform a complete background check and even
prevent the employer from being exposed to legal liability.
On the other side, prospective and current employees are
faced with the dilemma of either providing the information,
or potentially losing the job. This common scenario is more
complex because more than half of all job seekers utilize social
media websites to help them find work. As a result, starting
in 2012, lawmakers from several dozen states have enacted,
or attempted to enact, legislation that prevents employers
from requesting personal information or passwords to social
media accounts. In 2014, legislation was introduced in at least
28 states and was enacted in seven states: Louisiana, Maine,
New Hampshire, Wisconsin, Tennessee, Rhode Island, and
Oklahoma. In total, there are at least twenty states that have
now enacted laws restricting employers’ access to social
media or electronic mail, with more states certain to follow.
Information Restricted by Legislation
Legislation enacted on this topic varies from jurisdiction
to jurisdiction. Broadly speaking, the legislation prohibits
employers from requesting or requiring individuals to disclose
information that allows access to, or observation of, personal
online accounts. This suggests that employers should refrain
from “friending” a prospective or current employee in order to
learn information that is not otherwise publicly available. States
such as Washington have banned employers from demanding
that employees befriend them on social media. Certain states
prohibit an employer from requiring an employee to change
his or her privacy settings to allow the employer access to the
employee’s private social media accounts. Legislation also
prohibits employers from taking retaliatory action against an
employee for failure to disclose information to allow access to
personal online accounts. The remedies for violation of these
laws include civil penalties. Some states, such as Oklahoma,
have provided for the recovery of attorneys’ fees and costs for
a violation of the statute.
Information Not Restricted by Legislation
Generally, these state laws do not restrict an employer’s ability