Over the last few years, many employers have reviewed social media pages maintained by both existing and prospective employees. Certain employers have claimed that such a review provides insight on whether the prospective employee may be involved in activities that could be embarrassing or damaging to that employer. More circumspect employers claim that such a review assists in protecting trade secrets and proprietary information. Irrespective of the reasoning behind such a request, employers should be aware that several states have enacted legislation that prohibits such a request to prospective or existing employees and makes it illegal to take disciplinary action or to retaliate against an employee for refusing to disclose such information. This appears to be the wave of the future, as eight states have now enacted such laws, and legislation has been introduced in 36 other states.
The penalties for violation of the restrictions vary from monetary fines to jail time, depending on the state in which the violation occurs. Employers should appreciate that the introduction of such laws does not prohibit employers from maintaining restrictions on use of social media in the workplace or from restricting confidential or other protected information from being posted on such social media sites by employees.