Both federal legislative bodies announced legislative initiatives that will make it illegal for employers to require job applicants and employees to provide access to their social media accounts. Senator Richard Blumenthal (D-CT) and Representatives Ed Perlmutter (D-CO) and Patrick McHenry (R-NC) plan to introduce bills to the Senate and House of Representatives in the near future. These proposals come in the wake of state legislatures considering similar prohibitions. Increasing reports of employers accessing employee and applicants’ social media accounts – either by requiring the individual to login in the presence of a representative of the employer, accepting a “friend request” from a company executive, or providing login information to the employer – has provided the impetus for legislative action.  

The New Jersey legislature will be among the state governments considering introduction of similar laws, joining California, Maryland, Illinois and Washington. State Assemblyman John Burzichelli plans to introduce this legislation because, he says, asking for social media website login information is akin to “asking someone to turn over a key to their house.”

Both the federal and state proposals would prohibit:  

  1. Employers from requiring current employees or job applicants to provide or disclose login information to access a personal account on a social media website;
  2. Employers from requiring job applicants to waive or limit this right; and
  3. Retaliation against an individual complaining of a violation of this law.

Facebook itself issued a stern warning to employers, threatening to initiate lawsuits on behalf of its users where employers invade the privacy of employees and job applicants alike. Facebook chief privacy officer Erin Egan posted that gaining access to a user’s private information located on Facebook “potentially exposes the employer who seeks this access to unanticipated legal liability.” Facebook has taken the position that second-hand logins are a violation of its terms of service and, at least publicly, announced its intention to go to court if the practice continues.  

While neither the federal nor state legislative proposals have been passed into law, the growing movement to pass such laws indicates an inevitable change in social media laws. Employers may feel that access to social media sites helps make better hiring decisions, but the risk that the employer will stumble across potentially discriminatory information – an employee or applicant’s religion, disability, pregnancy status or sexual orientation – makes the practice increasingly dangerous. While the federal and state legislation remains pending, employers should begin revisions to their job application procedures and keep an eye on the legislation currently before federal and state governments that will undoubtedly change the social media landscape in coming years.