Hey Employers: Employee Social Media Passwords are (Mostly) None of Your Business (Not that You’ve Been Inquiring)

by Miller Canfield

“Likes,” “tweets,” “hashtags,” and “wall posts” are all words that have quickly entered our lexicon through the continuing explosion of growth that is social media. By breaking down communication barriers and encouraging interactions amongst each other – often publicly, instantly, and permanently – social media has dramatically changed how humans interact with each other, including within the workplace.

For the most part, employee use of social media has not required a fundamental rewriting of federal and state labor and employment laws. Employers may continue regulating employee use of social media as long as they do so within the traditional parameters of the law. It’s the regulation at the edges, however, that has made it more difficult for employers.

One of those “edges” is the extent to which employers may require applicants or employees to disclose login credentials for electronic accounts, including social media accounts. A few well-reported incidents in the past couple of years garnered significant attention from the media, privacy advocates, and state and federal legislators.

In 2011, the Maryland Department of Public Safety and Correctional Services suspended its practice of requiring applicants to provide social media login and password information, instead modifying it to require applicants to log into their accounts and let an interviewer watch while the potential employee clicks through wall posts, friends, photos and anything else that might be found behind the privacy wall. Similarly, a Michigan teacher’s aide was suspended in 2012 after failing to provide her school district with access to her Facebook account after a parent complained about a picture on her Facebook page.

Opponents of such practices assert that they are illegal under the Stored Communications Act, constitute an unlawful invasion of privacy and, for public employees, are a violation of constitutional privacy rights. Moreover, Facebook’s official position is that requiring the login and password disclosure could not only “potentially expose[] the employer who seeks ... access to unanticipated legal liability,” it also “violat[es] Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.”

Late last year, Michigan joined seven other states in enacting legislation governing such conduct. Effective December 28, 2012, Michigan’s Internet Privacy Protection Act (IPPA) prohibits employers from requesting that an employee or applicant grant access to, allow observation of, or disclose information that allows access to or observation of “personal internet accounts,” such as Gmail, Facebook and Twitter. Violators of the IPAA are guilty of a misdemeanor punishable by a fine of not more than $1,000. Individuals may bring a civil action to enjoin the violation and may recover not more than $1,000 in damages plus reasonable attorney fees and court costs. The IPPA also regulates educational institutions from engaging in similar conduct towards prospective or current students.

Under the IPPA, an employer may not discharge, discipline, fail to hire, or otherwise penalize an employee or applicant declining such requests. In contrast to other states, however, the IPPA contains several exceptions when an employer can request such information, including:

  • Accessing devices paid for, in whole or in part, by the employer, as well as monitoring, reviewing or accessing data that is either on such devices or travels through stored on an employer’s network;
  • Accessing an employer’s account;
  • Investigating, disciplining or discharging an employee for transferring certain employer information – proprietary or confidential information or financial data – without the employer’s authorization;
  • Conducting an investigation for the purpose of ensuring compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct;
  • Restricting or prohibiting an employee’s access to certain websites while using an electronic communications device paid for, in whole or in part, by the employer or while using an employer’s network or resources, in accordance with state and federal law;
  • Complying with a duty to screen employees or applicants prior to hiring or to monitor or retain employee communications that is established under federal law or by a self-regulatory organization as defined in the Securities and Exchange Act of 1934; and
  • Viewing, accessing, or utilizing information about an employee or applicant that can be obtained without any required access information or that is available in the public domain.

In addition to these exceptions, the IPPA expressly provides that employers do not have a duty to search or monitor the activity of a personal internet account and are not liable for failing to request or require that an employee or applicant grant access to, allow observation of, or disclose information that allows access to or observation of their personal internet account. Finally, an employer can plead as an affirmative defense to an IPPA action that it acted to comply with requirements of a federal law or a law of this state.

Critics of these “Facebook Password” laws argue that the laws are a solution in search of a problem, asserting that with the exception of a few widely reported incidents, employers do not engage in such conduct. A SilkRoad study from late 2012 seemingly validates this argument, finding that 97 percent of employers do not request social media password from employees or applicants. Nonetheless, regulating such conduct has seemingly struck a legislative nerve across the country – at least 23 other states and Congress are considering similar legislation. In short, stay tuned.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Miller Canfield | Attorney Advertising

Written by:

Miller Canfield

Miller Canfield on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.