It depends on the state.
As a social media use and competition for jobs increase, people are becoming more concerned with their online image. Recently, the media focused on employers gaining applicants' login information to access their social media accounts. Many states (at least seven so far) have decided that it is necessary to pass legislation protecting job seekers from overzealous employers. I've heard reports that at least 35 states have pending legislation.
Despite this push from state governments, I'm not sure that the hype is necessary. For starters, although I've had inappropriate questions asked during interviews, no one has gone this far. Secondly, I expect that all potential employers will Google (or Bing) my name, and with the exception of my Facebook, I have a public online presence that should keep them busy. Finally, even if a potential employer accessed my login information, there would be nothing for them to find.
In any event, the news stories outraged people, and the state governments acted. As of late April, Washington became the latest state to adopt legislation (SB 5211) that prevents employers from gaining access to social networking account logins.
Why Do We Need These Bills?
With Washington's passage of the social networking bill, it joins at least seven other states with similar bills. A little over a year ago, several news stories broke about employers asking for applicants' passwords. It seems unlikely that this is a widespread practice, just on a basic business
perspective. Beyond bad public relations, from a legal standpoint, looking at someone's private social networking account could expose an employer to information that it cannot legally use in the hiring process (religion, sexual orientation, family status, etc.). Why would an employer risk liability just to spy on applicants? In any event, legislatures saw applicant privacy as a big enough problem to do something about it.
These bills have received much criticism from lawyers and, more recently, wall street. Wall Street is concerned that it will be unable to investigate social networking accounts even if there is a legitimate need. For example, securities regulators worry that social media could create new channels for Ponzi schemes, and fighting those schemes will be harder if companies cannot monitor what employees are pitching to investors.
For a more detailed analysis of social media password laws generally, check out this Littler Report.
What Is SB 5211?
The bill has five major protections: an employee cannot (1) request login information for a personal social networking account; (2) watch an employer or applicant access their social media page; (3) force an employee or applicant to friend them; (4) require an employee or applicant to alter their privacy settings; or (5) take adverse action against an applicant if the applicant refuses to let the employer see their account.
The bill carves out an exception if (1) the employer requests the information in the context of an investigation (2) for the limited purpose of ensuring compliance or investigating unauthorized transfer of the employer's proprietary information (3) that is undertaken in response to receipt of information about the employee's activities on a social networking website and (4) the employer does not request login information.
The bill also excludes (1) social networks intended "primarily to facilitate work-related exchange" and (2) login information for work accounts.
The bill provides a private right of action to employees or applicants whose employers violate the statute.
About this Blog
I was once a licensed attorney (in Washington), but my license is now inactive. I like to geek out about entertainment,
internet, and privacy law. This blog is a place for me to do that. All of the views expressed are my own and should not be considered legal advice.
My personal blog is located under the tab Pax's Page.
Rachel is a typer of words.