Legislative Update: Missouri & Illinois Address Issue of Employer Requests for Employee/Job Applicant Social Media Account Information (Part I – Illinois)

Employment Law Practice Group

By Employment Law Practice Group

In the spring of 2012, national news media reported an increasing number of employers demanding employees and job applicants provide social media account login information (usernames and passwords) for searching and content monitoring purposes. In my blog post “The Facebook Folly” posted in April 2012, I noted at that time there was no explicit indication as to the legality of this practice.

Since early 2012, however, legislatures in both Missouri and Illinois have worked to clarify the issue in their respective states’ workplaces. We’ll focus on Illinois’ efforts first, and follow up with Missouri in Part 2.

Illinois was an early adopter of a policy prohibiting employers from asking employees or prospective employees for their social media account login information. On January 1, 2013, Illinois and California joined Michigan, New Jersey, Maryland and Delaware making such a practice illegal by enacting Public Act 97-0875, amending the Illinois Right to Privacy in the Work Place Act to read, in part:

It shall be unlawful for any employer to request or require an employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website. 820 ILCS 55/10(b)(1).

However, in an apparent attempt to balance the interests of both employees and employers, the Act further states and clarifies that it is not intended to limit the employer’s right to create and maintain lawful workplace policies governing Internet use, limit the employer’s ability to monitor usage of the employer’s electronic equipment or electronic mail (as long as the employer does not request or require the employee “provide any password or other related account information”), or limit the employer from obtaining information about its employees or prospective employees from the public domain.

The issue and scope of acceptable employer conduct in Illinois is hardly settled though. As of May 21, 2013, the Illinois Legislature passed Senate Bill 2306, amending the Act to distinguish between an employee’s “professional [social medial] account” and “personal [social media] account.” While maintaining the above protections for an employee’s “personal account” (one used “exclusively for personal communications unrelated to any business purposes of the employer”), SB2306 appears to carve out an exception for employer-related “business purpose” social media accounts. These business purpose social media accounts would likely include a corporate Facebook or LinkedIn account; however, SB2306 is not clear in this respect.

The Act will likely continue to change as employers and employees bring attention to ambiguities and problems arising from the present language. In this respect, and due to the evolving nature of this modern employment practice, it is likely SB2306 will not be the final word on this subject.

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