SUMMARY

On August 1st, Governor Quinn signed into law new standards that make it illegal for Illinois employers to request or require passwords or other account information for, or otherwise demand access to, social networking accounts and profiles. These new requirements, which will become part of the Illinois Right to Privacy in the Workplace Act, are effective January 1, 2013.

ACTION ITEMS

• Train all employees involved in hiring and all management employees regarding
  the legal limitations on reviewing employees' and prospective employees'
  social media activity and the prohibition on requesting or demanding
  access (or information that would allow access).


• Review your company's social media policy to confirm that it is consistent with
  new requirements. If you don't currently have a social media policy,
  consider implementing one.


• If your business is currently requiring employees or prospective employees to
  provide passwords or other access to their social media accounts or
  profiles, take the steps necessary to stop doing so by the end of the
  year.


• If you decide to review on-line information regarding employees or
  applicants, take care to only review publicly available information that
  you are authorized to access.

DISCUSSION

As of January 1, 2013, it will be illegal for Illinois employers to (a) request or require employees or prospective employees to provide passwords or other account information in order to gain access to that individual's account or profile on any social networking website or (b) demand access in any manner to an employee or prospective employee's account or profile on a social networking website.

Critically, the law does not provide exceptions based on the position in question - even if a position requires thorough background checks or involves particularly sensitive responsibilities, the prohibition applies. While the new Illinois law does not limit employers' lawful monitoring of employees' use of company electronic systems, and does not prohibit employers' ability to review information in the public domain, the prohibition on accessing employees' and prospective employees' non-public social media is absolute.

The new Illinois law (which is an amendment of the Right to Privacy in the Workplace Act) makes Illinois the second state to enact legislation specifically targeted at the perceived problem of employers requiring individuals to open up their social media activities as a condition of employment. A similar law was passed in Maryland this spring and bills are pending in at least 10 other states and in Congress. In addition, both the National Labor Relations
Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) have recently taken steps to emphasize that employers' use of information found on social media - and even the employer's social media policy itself - can violate employee rights under discrimination and labor laws.

As the new Illinois social media requirements are part of the Right to Privacy in the Workplace Act, the Illinois Department of Labor has the right to issue regulations and investigate violations of these requirements and, if it determines that a violation has occurred, may file suit against an employer in court. Employees and prospective employees also have a right to file suit in court for a violation of the social media privacy requirements and may receive actual damages, costs and attorneys' fees.

It is important that employers review their social media policy and other policies and procedures relating to employee hiring and discipline to ensure that they are consistent with the new Illinois standards, and that employers train management employees and all employees involved in hiring to ensure that they understand and comply with the new Illinois standards and with other legal requirements. Also, in light of the NLRB's recent focus on social media policies and on how disciplinary action against employees for posts on social media can violate the National Labor Relations Act (even in non-union workplaces), we recommend that all employers train their management and human resources teams on managing the legal pitfalls in employees' use of social media.