Illinois Employers To Be Prohibited From Obtaining Current or Prospective Employees’ Social Media Passwords

Effective January 1, 2013, Illinois employers will be prohibited from requesting from a prospective or current employee (referred to herein as “Employee”) his/her password, login information or other related account information to gain access to the Employee’s social
networking profiles or accounts. The law permits Employees to file a lawsuit whenever an employer demands such access “in any manner” to their social media profile or account.

The United States Congress is currently considering the passage of Federal laws that will prohibit employers in all 50 States from seeking or requiring such access to the social media profiles of current or prospective employees.

The Right to Privacy in the Workplace Act (820 ILCS § 55/1), however, does not prohibit an employer from obtaining information about an Employee that is in the public domain and is not shielded by the owner through privacy settings.

Nonetheless, and even before this law was passed in Illinois, our firm has always recommended that employers not seek passwords or even investigate the social media profiles or accounts of current or prospective employees, regardless of whether that information is available in the public domain. The information gleaned from social media profiles could provide the employer with information that it is prohibited from seeking in an interview. For example, an employer may learn from a prospective employee’s profile that the employee is pregnant, homosexual, or a member of some other protected class (i.e. disabled, of a certain national, religion, etc.). If the employer does not hire the employee following review of the
employee’s profile, then the employer exposes itself to litigation as the employee could make a claim that the decision to not hire was discriminatory because it was based upon the information
obtained through investigation of the social media profile before the decision to hire was
reached.

Of course, with this new law going into effect on January 1, 2013, our past
recommendations will now be mandatory rules employers must follow.