Yesterday began this series of five posts to highlight five developments from this past summer in the area of social media and employment law. In Part 2 today: are legislators acknowledging that they went too far with their “Facebook demand” laws, or are they simply refining the laws with the benefit of passing time?
Much to my (and others’) chagrin, so much time was spent in 2012 and the first half of 2013 taking surveys and updating the surveys as each new state law was enacted to prohibit employers from requesting or requiring employees – potential or current – to turn over social media account passwords. I question(ed) whether there is (was) a real need for these laws, and rhetorically sought some justification for the speed with which these legislative bodies apparently can come together on this issue. Many states continued to enact the laws, notwithstanding my thoughts on the subject.
Yet, this summer brought an interesting amendment in Illinois, which was the second state after Maryland to enact a “Facebook demand” law, as I posted here back on August 6, 2012. The amendment this past summer begs the question whether we will continue to see further “refinements” of these laws in other states, or, dare I ask, might they even be repealed down the line as totally overbroad and even unnecessary.
The Illinois amendment now allows employers to demand access to “professional” social media accounts, defined as an account used “by a current or prospective employee for business purposes of the employer.” Though I’m not sure why the employer would not already have password and other necessary account information for an account used by an employee for the company’s business purposes. The amendment also makes clear that employers are not prohibited from making a demand or request to comply “with a duty to screen employees or applicants prior to hiring under Illinois insurance laws or federal law or by a self-regulatory organization as defined [in the Securities Exchange Act].”
Employer Take Away: What should you as an employer take away from this development?
Again, the interesting point here is not so much in this topic of Facebook demand laws, but in the fact that Illinois appears to be an early indicator of a trend toward refining these laws when loopholes and realities render the law impractical, at best.
But, still, before your company seeks access to an employee’s private social media account (and I’m still not sure why you would want to be known as the employer that demands such access in the first place), you still should determine as a threshold matter the state of the law in your company’s jurisdiction.