Business Law

Employers and Your Social Media Passwords

The use of social media like Facebook, YouTube and Twitter continues to transform the employment process. When making employment decisions, employers are interested in information about their workers and potential workers. Employees, on the other hand, have a reasonable expectation of privacy.

Increasingly, employers are asking employees and job applicants to provide usernames and passwords for their private social media accounts. They use this information to review these sites for suspicious or inappropriate activity. Although uncomfortable with such requests, individuals in need of getting or keeping a job often reluctantly comply.

Social Media Are Rich Sources of Info

Social media sites are used by individuals primarily to share private information with friends and family. Some of this information indicates age, marital status, religion, sexual orientation and activities. Most sites allow this information to be kept private, or made public.

Social media include just about any online activity, including an electronic service or account, or electronic content. Content can include videos, still photographs, blog posts, video blogs, podcasts, instant and text messages, emails, online services or accounts, or Internet website profiles or locations.

Is It Legal for Employers to Ask?

The phenomenon of social media is relatively new, as is the area of law that governs it. In most states, it is legal for employers to ask for usernames and passwords to private accounts, as long as the information that is gathered is not used for any discriminatory or otherwise illegal purpose under state and federal employment law.

However, there is growing resistance to this trend. Maryland, Illinois and California in 2012 passed laws designating anything marked as private on social media accounts as being beyond the limits of an employer. Employers in these states cannot ask for passwords, and should change their policies accordingly. Similar legislation is currently pending ten or more additional states.

The new laws prohibit any retaliation against employees who refuse to divulge their information.

What Employers Can Still Do

The new laws and proposed laws still allow employers to view public (as opposed to private) social media postings, as long as the information gained is not used to make unlawful employment decisions.

The laws expressly allow employer to maintain workplace policies governing the use of employer-owned computers as well as email and Internet resources, and to monitor employees’ use of employer-owned computers and email. The line blurs when an employee uses a personal device like a smartphone to access work accounts.

At Present, No Federal Laws

As of 2012, there are no federal laws or Supreme Court decisions on this issue. The Social Networking Online Protection Act was introduced in the U.S. House of Representatives in April 2012. The Password Protection Act of 2012 was filed in May 2012. If passed, either would impose restrictions on all employers under federal law.

An Employment Lawyer Can Help

The law surrounding an employer’s request for an employee’s or job applicant’s social media usernames and passwords is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact an employment lawyer.

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