As we have previously written, numerous states have proposed
legislation intended to prevent employers from demanding access to the social
media accounts of employees or job applicants.
Previously only Maryland and Delaware had actually passed such legislation,
although as many as fifteen states and the federal government are considering
similar legislation. See Sam Favate
“Illinois Becomes Third State to Pass Social Media Privacy Law”, Wall Street
Journal Law Blog (Aug. 2, 2012) (available at: http://blogs.wsj.com/law/2012/08/02/illinois-becomes-third-state-to-pass-social-media-privacy-law/?mod=djemlawblog_h). However, on August 1 Illinois Governor
Patrick J. Quinn signed the “Right to Privacy in the Workplace Act” into law,
making Illinois the third state to put such legislation on the books.
The Right to Privacy in the Workplace Act provides that:
It shall be unlawful for any employer to request or require any 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).
This prohibition differs somewhat from that found in the
Maryland User Name and Password Privacy Protection and Exclusions Act, House Bill 964 (amending Md. Code Ann. Labor & Empl. 3-712), and the Delaware
Higher Education Privacy Act, 14 Del. Code 9401 et seq. The Maryland law
provides that: “Subject to Paragraph (2) of this subsection, an employer may
not request or require that an employee or applicant disclose any user name,
password, or other means for accessing a personal account or service through an
electronic communications device.” Among
other differences, the Maryland law protects only current employees, while the
Illinois law protects both current and prospective employees. The Delaware law, as its name implies,
applies only to “public or nonpublic academic institution[s],” but covers both
current students and applicants. 14 Del.
Code § 9403(a)-(b).
Nevertheless, the Illinois law does contain potentially
broad carve-outs and omissions. Of
particular note is the fact that the employer is permitted to institute and
enforce lawful policies regarding internet use, social networking site use, and
electronic mail use. See 820 ILCS
55/10(b)(1). More significantly, the
Illinois statute provides:
(2) Nothing in this subsection shall limit an employer's right to:
(A) promulgate and maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use; and
(B) monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting or requiring any 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.
820 ILCS 55/10(b)(2)(A)-(B).
So, while the employer is prohibited from requiring an employee to
provide his or her device, this “exception” appears to make anything the
employee does on an employer-provided electronic device or network fair
game. The Maryland law also contains
carve-outs regarding employee use of employer devices and the employer’s
ability to enforce its policies. By
contrast, the narrower Delaware law provides no such exception. It contains only a narrow carve-out for
investigations of criminal activity or investigations related to an
institution’s threat assessment policy.
14 Del. Code § 9405.
While an individual alleging a violation of the Illinois law
may file a complaint with the Illinois Department of Labor which may fine the
employer, the Illinois law (like the Maryland and Delaware laws) does not
provide for an independent private cause of action in the courts. Fines under the Illinois law range between $200
and $500 per affected employee, plus costs and reasonable attorneys’ fees. 820 ILCS 55/15(d)(1)-(3). Although the Delaware law specifically
details the actions which public and nonpublic academic institutions might
take, it also fails to spell out an explicit penalty for violation of this
mandate:
“No public or nonpublic academic institution may discipline, dismiss or otherwise penalize or threaten to discipline, dismiss or otherwise penalize a student for refusing to disclose any information specified in subsection (a) or (b) of § 9403. It shall also be unlawful for a public or nonpublic academic institution to fail or refuse to admit any applicant as a result of the applicant’s refusal to disclose any information specified in subsection (a) or (b) of § 9403.”
14 Del. Code § 9404.
Apart from the fines provided for by the Illinois law, the primary
method of enforcement for these laws appears to be a tort action for wrongful
termination in violation of public policy.
It remains to be seen whether such an enforcement mechanism is adequate.
These laws often fail to expressly address the much larger
issue of employer monitoring of employee behavior on work related electronic
devices – an issue of growing consequence in a world where increasing numbers of
individuals use one device for both work and personal purposes. In fact, both the Maryland and Illinois laws
contain broad carve-outs for this sort of behavior. See 820 ILCS 55/10(b)(2)(B); Md. Code Ann.
Labor & Empl. 3-712(b)(2), (e). It
remains to be seen whether, and how, this issue will be addressed. For further information See Martha Neil, Ill.
Gov. Signs ‘Facebook Bill’, ABA Journal (Aug. 1. 2012) (available at:
http://www.abajournal.com/mobile/article/ill._gov_signs_facebook_bill_as_of_jan._1_employers_who_ask_for_passwords/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email);
Eric B. Meyer, Snoop Dog Becomes Snoop Lion! And News of a New Employee
Facebook Law, The Employer Handbook (Aug. 2, 2012) (available at: http://www.theemployerhandbook.com/2012/08/illinois-becomes-the-2nd-state.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+employmentlaw-blog%2FimGSCom+%28Employment+Law+Blog%29).
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