March 16, 2018

State Legislation Affecting Employers Seeking Social Media Information

Employers seeking applicants’ social media passwords are up against some big opponents. The American Civil Liberties Union (ACLU) has publicly announced their opinion against employers seeking applicants’ Facebook passwords. Some states are also taking a stand against these employers.

A number of states have proposed legislation which would make asking applicants and employees for their social media passwords illegal. The lawmakers introducing these bills have called the practice an “infringement on constitutional rights,” akin to “asking an employee for a date,” and “an egregious privacy violation” similar to “requiring someone’s house keys.”

States that have either considered proposing or already proposed legislation include California, Massachusetts, Illinois, and Michigan. In Minnesota, Republicans Sen. Sean Nienow and Rep. Mary Franson have proposed similar legislation. The states have faced understandable opposition from the business community, arguing the practice is not widespread. Legislators in California admitted their bill is preventative; it was not introduced in response to a high number of complaints.

In Maryland, a bill has passed the General Assembly, and is waiting for the Governor’s signature. It is the first state with similar legislation to reach this far. The Maryland bill faced similar opposition from the business community, where opponents argued the business reasons for seeking this information far outweighed any potential privacy concerns with information publicly available on the Internet. Other companies argue that this information is necessary because the nature of their business involves confidential information. The Maryland Division of Corrections, whose actions seeking passwords prompted the legislation, noted that a number of applicants were rejected for employment because their Facebook pages indicated gang affiliation.

Employers must stay on top of state legislation addressing this issue, particularly if their business requires more extensive background checks of employees.