The recent media frenzy and resulting flurry of legislative activity at both the federal and state level to ban employers from requesting or requiring access to employee or applicant social media highlight a new reality for employers: social media has blurred employees’ private and professional lives, creating shaky legal ground for even the most cautious employer. The chances of an employer stumbling into unforeseen legal problems exist because the numerous areas of law touched by social media have failed to evolve at the same pace at which social media use has expanded. Even well-intentioned employers may not be considering the different ways accessing information about their current and prospective employees may expose them to liability. Highlighted below are several areas of potential risk that employers should consider as their social media practices and policies progress.

Privacy Laws -

Following the media activity about employers accessing social media information from employees or prospective employees, Maryland and Illinois passed laws banning the practice, and several states have similar legislation pending. Likewise, Senator Bluementhal from Connecticut introduced the Password Protection Act of 2012 (the “PPA”) as broad federal legislation designed to proscribe an employer’s access to any employee information held on any computer that isn’t owned or controlled by the employer. The PPA, if passed, would extend beyond Facebook and other social media sites to prohibit employers from asking for passwords to social media or personal webmail accounts such as gmail, even if an employee is accessing those sites from a work computer. The bill does not, however, limit an employer’s ability to set its own policies governing use of its electronic resources or set parameters around use of social media in the workplace.