New legislation should shield Wisconsin job seekers from prospective employers who want access to their private social media accounts.

Authored by Rep. Melissa Sargent, D-Madison, SB 223 prohibits employers, schools and landlords from requesting the passwords for applicant, student or potential tenants’ Facebook and other social media pages. The legislation was introduced in 2013, but was just passed by both the Wisconsin Assembly and Senate. Gov. Scott Walker is expected to sign the bill into law later this year.

Once law, the bill will protect people from being penalized or discriminated against by refusing to turn over personal Internet and social media account information. The legislation does not, however, prevent an employer from observing or acting on a person’s publicly-available social media data.

In an interview with Government Technology, Sargent said she decided to work on the legislation after seeing that the messaging aspects of social media platforms were being used as primary communication vehicles, instead of just fun diversions.  She believes the bill will protect the 4th Amendment rights of the account holder and the people with whom that person is communicating.

Sargent was adamant that if an employer is not allowed to ask an employee or prospective employee for their private snail mail or emails, then they shouldn’t have access to private social media information either.

“If someone has your login and password, they can see all that backend stuff … and it’s that type of protection that I am taking into account in bringing our laws up-to-date with the times,” Sargent said.

Continuing Trend

Wisconsin would be one of several states to adopt this kind of legislation. Washington set social media privacy policy early last year, while a New Jersey bill on social media protection went into effect last December. According to NJ.com, the Garden State was the 12th state in the U.S. to implement a law regulating social media privacy in the workplace.

In an email to Government Technology, Sheila Gladstone, principal attorney with the Lloyd Gosselink Rochelle & Townsend law firm in Austin, Texas, noted that 15 more states have a social media password protection law pending. She added that a similar law was proposed but didn’t pass in Texas, but she’s advising her employer clients to respect the trend and not ask prospective employees for access. Instead, she’s encouraging them to review only what is open to the public or to any members of a particular social media site.

The Journal Sentinel reported that many of the social media password protection laws being circulated around the country have received bipartisan support. Sargent agreed and said her bill was bipartisan in both houses. In addition, she revealed the Wisconsin bill had support from a local chamber of commerce, a conservative business group and a branch of the ACLU.

Issues and Concerns

An amendment to the bill was made last week to ensure employers still had the right to “friend” employees on the various social media platforms. Sargent explained some parties were concerned that the legislation would prohibit employers and employees who had personal relationships from connecting online. 

The Wisconsin Legislative Council – a nonpartisan agency of the state that analyzes bills – felt the legislation was a bit ambiguous on the point, leading to the amendment. Sargent felt the change clarifies that employers and employees can mutually agree to connect on social media.

In addition to employee protections, Sargent’s bill also maintains a variety of employer rights. For example, some employees are in charge of providing social media for a company or use social media on equipment owned by a company. Under the new legislation, employers are still allowed to monitor what’s being done on a company owned computer, and the employer has the right to conduct investigations and compel employees to cooperate if there are any alleged unauthorized use of confidential information using social media.

Gladstone believes the bill is well drafted. She said Sargent’s legislation addresses most of the concerns an employer might have, particularly if an investigation is necessary regarding unauthorized transfer of employer data to an employee’s social media account.

“Most importantly, employers can still find out what applicants are putting out there for general public consumption, they just can’t force access to private pages that only the employee’s friends and family might see,” Gladstone said. “I think this bill is a good balance of both individual privacy concerns and legitimate employer needs.”

Brian Heaton  |  Senior Writer

Brian Heaton is a senior writer for Government Technology. He primarily covers technology legislation and IT policy issues. Brian started his journalism career in 1999, covering sports and fitness for two trade publications based in Long Island, N.Y. He's also a member of the Professional Bowlers Association, and competes in regional tournaments throughout Northern California and Nevada.