JSH Reporter Summer 2015 - Page 16

SOCIALMEDIAARTICLE 016 DEMANDING ACCESS TO SOCIAL INFORMATION MEDIA ANd PERSONAL IS IT LEGAL? AUTHOR: Patrick Gorman EMAIL: pgorman@jshfirm.com 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