U.S. State Laws to Ban Employer-Access to Applicant/Employee Social Media & the U.S. Federal Government Response

A growing trend among U.S. employers is requesting applicants’ usernames and passwords to gain access to and review personal social-media accounts as part of the hiring process.  There are arguments for and against employers doing so.  The public outcry against this practice has caused lawmakers and social-media companies to take steps to address concerns. 
 
In response to this trend, Facebook implemented a provision in its Statement of Rights and Responsibilities making it a violation to share or solicit password information.  Facebook reasoned:
 
“We’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information.  This practice undermines the privacy expectations and the security of both the user and the user’s friends.  It also potentially exposes the employer who seeks this access to unanticipated legal liability.” 
 
Some state lawmakers have stepped-up to curb the practice, as well.  While Maryland lays claim as the first to do so, four states -- California, Illinois, Maryland, and Michigan -- enacted legislation in 2012 that prohibits such conduct by employers.  At least 28 states have passed or proposed similar laws. 
 
Most recently, Arizona introduced law on February 17, 2013, that would prohibit an employer from doing any of the following:
 
a) requesting or requiring an employee or applicant to disclose any username, password or other means of accessing a personal account or service through an electronic communications device;
 
b) discharging, disciplining or penalizing an employee for the employee’s refusal to disclose such information or threatening to do so; or
 
c) failing or refusing to hire an applicant for the applicant’s refusal to disclose such information.
 
How is the U.S. Federal Government Approaching the Issue?
 
Federal lawmakers reintroduced law on 6 February 2013, to prohibit the practice of employers requiring personal passwords and other information for the purpose of accessing personal online user accounts.  The Social Networking Online Protection Act (“SNOPA”) was originally introduced in response to employment-setting privacy concerns and so called “Facebook snooping.”  The proposed law, introduced by Rep. Eliot Engel (D-NY) and co-sponsored by Rep. Jan Schakowsky (D-IL), would essentially ban employers from doing so on a nationwide scale.  SNOPA was framed as "[a] bill to prohibit employers and certain other entities from requiring or requesting that employees and certain other individuals provide a user name, password, or other means for accessing a personal account on any social networking website."
 
Supporters argue its protections will extend even further.  Rep. Schakowsky said: “The American people deserve the right to keep their personal accounts private” and “no one should have to worry that their personal account information, including passwords, can be required by an employer.”  Rep. Engel extended it further saying, “passwords are the gateway to many avenues containing personal and sensitive content – including email accounts, bank accounts, and other information” and “several states, including New York have begun addressing the issue, but we need a federal statute to protect all Americans across the country.”  If passed, SNOPA would prohibit current or potential employers from requiring a username, password or other access to online content and would not permit employers to demand such access to discipline, discriminate, or deny employment to individuals, nor punish them for refusing to volunteer such information. 
 
If employers are openly asking for private social-media access, they already risk an employment discrimination claim by a rejected applicant.  For example, the Age Discrimination in Employment Act (“ADEA”) protects persons age 40 and over from discrimination in the workplace based on age, even during the hiring process.  A person’s age, however, is usually listed prominently on Facebook profiles.  Also, Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex, or national origin.  In most instances, employers are prohibited from considering any of these attributes during the hiring process.  There are many ways to judge an applicant’s or employee’s ability to perform a job without requiring Facebook snooping.  SNOPA would make the practice illegal. 
 
For now, SNOPA waits for review by the House Education and Workforce Committee.  Support continues to grow as several other members of Congress, including Rep. Paul Tonko (D-NY), Rep. Keith Ellison (D-MN) and Rep. Chellie Pingree (D-ME), jump on board to support the bill.  The main arguments for and against these proposed laws center around United States Constitutional privacy concerns, however, employers should consider that restricting access to this type of information might not be as harmful as opponents argue.  Social media, like Facebook, is likely to contain information that is particularly troublesome under various anti-discrimination laws. 
 
While there has been outcry over employers requesting such information due to privacy and employee-rights, the laws have significant support and public social-media concerns are sure to remain high.  These laws, however restrictive on employers’ ability to deeply investigate its applicants, may save employers heartache down the road. 
 
Brian Clifford is an attorney with Waller Lansden Dortch & Davis, LLP in Nashville, Tennessee.  Employers in a broad range of industries—including education, energy, healthcare, hospitality, insurance, manufacturing, and packaging—rely on Brian Clifford to defend allegations and to provide counseling on issues involving discrimination, harassment, retaliation, wage and hour, wrongful discharge, and immigration.  
 
Brian Clifford can be contacted by phone on +001 615 850 8504 or alternatively via email at Brian.Clifford@wallerlaw.com