Illinois Limits Employers' Ability to Request Employees' Facebook and Social Media Passwords

On Aug. 1, 2012, Illinois Governor Pat Quinn signed into law a statute making it illegal for employers to demand from employees and job applicants user names or passwords linked to their social media accounts. In doing so, Illinois became only the second state to enact such legislation.

Employers use information contained on employees' or applicants' Facebook, Twitter or other social media sites to evaluate employees and applicants. It is perceived that employers are requiring employees to reveal their user names and passwords to allow employers unfettered access to employees' social media sites. Alleged abuses arising from employers' use of information from employees' social media sites has led Congress and a number of states to consider laws similar to the Illinois law. Five U.S. senators have introduced legislation similar to the Illinois law, and two U.S. senators have asked the U.S. Department of Justice to review whether password requests from employers are legal. While only Maryland has adopted similar legislation, social media site privacy laws are gaining momentum in at least 10 other states, including Washington, Delaware and New Jersey. In addition to the legislation, the Acting General Counsel of the National Labor Relations Board has issued a series of memorandums finding that some employers commit an unfair labor practice by having overbroad social media policies or using information contained on an employee's social media site to discipline the employee.

The Illinois law, H.B. 2782, which takes effect Jan. 1, 2013, amends the Illinois Right to Privacy in the Workplace Act. It confers privacy rights on employees and job applicants with regard to social media sites like Facebook and Twitter. The law specifically excludes e-mail from the definition of social media. The new law prohibits employers from requesting personal identification codes or demanding access to employees' or applicants' social media sites. It also prevents employers from requiring employees and prospective employees to provide them with portions of their social media profiles for review even without revealing their passwords.

The law does not prohibit employers from adopting or maintaining lawful workplace policies dealing with the appropriate use of electronic equipment, the Internet, email and social networking sites by employees. It also preserves the right of employers to obtain information about employees and job applicants that exists on the internet in the "public domain.''

Employers who have facilities in Illinois should not require employees or applicants to reveal their social media passwords or force them to allow the employer to view the social media site. Unless the information is not password protected and in the "public domain," the employer should not use it when making decisions concerning employees and applicants.

All employers should exercise caution in using social media sites when making decisions concerning employees and applicants. Because of the increasing scrutiny of employers' use of social media when making decisions regarding employees and applicants and the National Labor Relations Board's aggressive position on social media, we recommend that employers:

• Review social media, communications, confidentiality and other policies to ensure that the policies do not violate the National Labor Relations Act or state law.
• Include limiting language or examples in the polices.
• Have human resources personnel carefully review any discipline or decision that arises out of a social media posting.
• Train supervisors to avoid asking for access to employees' social media sites.
• Train supervisors on what is an improper social media posting and the proper steps in disciplining an employee for a social media posting.

If you have any questions about the new Illinois law or the National Labor Relations Board's Acting General Counsel's Memorandum regarding social media policies, contact L. Steven Platt at
(312) 985-5943 or splatt@clarkhill.com , or another member of Clark Hill's Labor and Employment Practice Group.