As we recently noted, Illinois just became the second state to pass a law prohibiting employers from requiring employees or applicants to disclose their social media passwords. This appears to be the latest addition to a growing body of similar legislation, rather than an isolated action. The adoption of this law in Illinois quickly followed the enactment of the first such law by Maryland. Several other states, including California, Michigan, and New Jersey, have similar bills working their way through their legislatures. Additionally, the U.S. Congress continues to consider the Social Networking Online Protection Act, a proposed law that, if enacted, would similarly bar employers from requiring disclosure of social media passwords by job applicants.
The issue of privacy rights related to information available through the internet has captivated the attention of the public, the media, and politicians alike, as illustrated by a recent Associated Press story highlighting the increasing number of employers who ask for social media account information and make a review of social media a part of the selection process.
What's going on may reflect a generational divide. From my middle-aged, pre-internet point of view, and as a lawyer, I find it almost laughable that someone could claim that the information they choose to share on social media or in other internet communications is private. My 19 year old daughter, on the other hand, who came of age during the social media explosion, is appalled at the thought of "cyber trolling" for information by those who were never intended to be the recipient of information shared via social media. She believes that social media privacy is possible and should be expected. It remains to be seen how legislators, most of whom came of age in the pre-internet era, will shape social media and internet privacy laws, and how the courts will interpret those laws. For now, it looks like legislation that supports privacy is on the increase.
Out in the world, the same generational divide that creates different expectations of privacy may be at work when younger employees post statements on social media sites that are openly critical of their employer. Older generations probably see that as awfully risky behavior, while younger, more internet-fluent employees think of it the same way they think of complaining about the employer at the water cooler or at the bar after work.
When it comes to pre-hiring background checks or other employment-related inquiries, many employers are of the opinion that any information an employee or prospective employee chooses to share in the cyberworld is fair game for consideration and reflects on the author's judgment. Even though that view isn't likely to be shared by younger generations, for now it's a reality. Of course, information-gathering by employers, whether through a formal criminal background check or a quick Google search, continues to be fraught with with peril. Publicly available information may have great value to employers, but it is also a source of potential legal exposure, and the acts of gathering and considering it may result in angry employees.
In the end, these legal developments and resulting public discussion serve to underscore the fact that employers -- and indeed all of us -- are operating in a brave new world and need to proceed with caution. Employers may be well-served in managing their workforce, and attempting to preserve good employee morale, by trying to view the issue of internet privacy rights through their employees' eyes.