As U.S. state governments continue restricting employer efforts to study employees' and job seekers' personal social accounts, employers might need to review policies to ensure they are not counter to these new laws.
Starting in 2012, U.S. state legislatures began introducing laws that would restrict employers from requesting the user names and passwords to employees' personal and private social media accounts, according to the National Conference of State Legislatures. That trend is continuing in 2013, with legislation pending as of June 12 in 26 states. Twelve states have already enacted such legislation since the beginning of 2012. While many people have their social media accounts available to the public, others keep theirs private and only share them with certain people or groups of people. It's been reported that these are the kinds of accounts employers have been requiring employees and potential employees to provide them access to.
At the heart of the issue
In May 2012 Gartner predicted a significant rise in company monitoring of employee behavior in the digital realms. At that time, the firm predicted that by 2015, 60% of corporations would have formal programs in place for monitoring external social media, ostensibly for security reasons, but also to monitor and manage their brands. If it comes to pass, much of this additional monitoring is happening because of the blurring of lines between employees' work and personal lives with the proliferation of mobile devices, cloud services, and social media.
Proponents of keeping employers out of personal social media accounts say it's a privacy issue, and not only for the person's account that's being looked at, but also for the person's connections. They also say there are already laws that protect proprietary information and that using such tactics for screening job applicants can call into question whether a company is illegally considering protected items such as race and sexual orientation when making hiring decisions.
Businesses say the new laws being considered to keep them out of employees' personal social media accounts open an avenue for employees to divulge proprietary information to those who shouldn't have it, and they also claim the laws put dampers on their ability to investigate such matters, according to an Associated Press report. In some states, business interests have been working to add amendments that allow companies to require access to personal digital accounts when responding to allegations that the employee has engaged in workplace misconduct or given away proprietary information. In Colorado, where a law has already been enacted, similar measures are attached. There, besides government law enforcement agencies being exempted, employers can request access to employees' personal digital accounts when they are investigating "reported" breaches of:
- compliance, regulatory and securities laws; or
- company proprietary information or financial data.
Colorado makes it clear that "fishing" expeditions are not allowed, and the employer must have information to support starting its investigation. Employers can be assessed fines for violations when complaints are found to be valid by the Colorado Department of Labor and Employment.
The states and legal guidance
New Jersey's law, passed by its legislature but conditionally vetoed by the governor, is characterized as one of the most pro-employee bills in the nation with not only a prohibition on requesting employee passwords to personal social media accounts, but also for even asking if employees or prospective employees have social media accounts, according to an article on mondaq. The bill passed with enough support to override the veto, but there has been some markup on the bill (PDF) by the legislature to accommodate the governor's requests, which include striking the prohibition on asking about social media accounts, and removing a provision allowing aggrieved persons to bring civil actions against employers for violating the law.
States with laws already on the books include: Arkansas, California, Colorado, Delaware, Illinois, Maryland, Michigan, New Mexico, Oregon, Utah, Vermont, and Washington. States with pending legislation include Arizona, Connecticut, Georgia, Hawaii, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, Texas, West Virginia, and Wisconsin.
Law firms have been issuing guidance to employers to help them stay inside the law. For example, Holland & Hart, a national law firm serving employers, wrote on its blog that besides examining their existing background check practices, companies should also review their workplace investigation procedures, policies related to use of company digital assets, and policies affecting their own access to digital accounts.