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States Begin to Restrict Employer Access to Private Social Network Information

A Workplace Law Client Alert

By: Bodman's Workplace Law Practice Group

08/23/12

Seeking unvarnished information on their applicants and employees, some employers have required access to the non-public portions of social media sites. Some state legislatures have taken action to stop this practice.

The Illinois legislature has recently passed the country's second state law making it illegal for employers to ask job applicants or employees for user names and passwords to Facebook or other social media accounts. Violations can result in civil lawsuits with fines. The Illinois law takes effect January 1, 2013. Employers are not precluded from viewing information not restricted by privacy settings on a website. A similar Maryland statute prohibits employers from requesting or requiring that employees or applicants disclose any user name, password or other means to access a “personal account or service.” The Maryland law takes effect October 1, 2012.

Where is Michigan on this? Two anti-password bills have been introduced into the Michigan House of Representatives. House Bills 5523 and 5623 seek to preclude employer social network access requests and hiring decisions based on those access requests. Similar restrictions would apply to educational institutions seeking information on students and applicants. Violations would be criminalized, subject to fines, and support civil lawsuits for damages. Even without legislation, it is not too far-fetched to imagine a plaintiff's lawyer pushing an invasion of privacy claim against an employer seeking social media information.

Other states are looking at the password issue. Federal legislation has also been introduced in Congress.

Although there is no law yet in Michigan, employers need to be careful, especially if working in other states. Contact any member of Bodman's Workplace Law Group for guidance.

Workplace Law Group