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States Continue Banning Employer Access to Social Media

Private Facebook and other social media accounts are becoming increasingly off-limits to employers seeking information about current and prospective employees.

Social media has been a remarkable tool over the last several years, enabling friends and family members to connect and stay in touch. But for all the benefits sites like Facebook can provide, they’ve also become privacy landmines for those people who want separate professional and personal lives.

Employers have been pushing employees for access to their social media accounts for years, raising a number of legal concerns. While an employee or prospective hire could decline such a request, a denial may potentially cost someone their job. And if permission is given, who’s to say that a photo shared between “friends” doesn’t influence a boss’ opinion of someone?

As a result, many states are now banning private- and public-sector employers from making compliance with social media password requests necessary. Louisiana may become the latest state to outlaw the practice. The Louisiana House of Representatives unanimously voted in favor of the Personal Online Account Privacy Protection Act last week.

Also known as HB 340, the measure prohibits employers from demanding online account access as a condition of employment, both before and after a person is hired. In addition, the bill forbids K-12 and post-secondary schools from disciplining those students that don’t provide access to their accounts.

Sponsored by Rep. Ted James, D-Baton Rouge, the bill now sits on Gov. Bobby Jindal’s desk for his consideration. This is the second time James has pushed this particular issue. He told the Louisiana Radio Network that he filed basically the same bill last year, but did so too late during the state’s legislative session to get any movement on it.

Only minor changes were made to the 2013 version of the measure.

“We added a provision that basically allows for the information to be requested but not mandated,” James said.

According to the National Conference of State Legislatures, Louisiana is just one of 28 states considering laws on the issue this year. Maine and Wisconsin have already enacted social media privacy protection legislation in 2014.

Wisconsin’s measure
is slightly different than what is being proposed in Louisiana, however. Authored by Rep. Melissa Sargent, SB 223 prohibits employers, schools and landlords from even asking for the passwords to social media accounts.

Signed by Wisconsin Gov. Scott Walker earlier this year, SB 223 protects people from being penalized or discriminated against by refusing to turn over personal Internet and social media account information. It does not, however, prevent an employer from observing or acting on a person’s publicly-available social media data.

Atty. Philip Gordon, chair of the Privacy and Data Protection Practice Group of Littler Mendelson, a global employment and labor law firm, believes legislative protections of social media accounts are an overreaction. He doesn’t see any empirical evidence that private employers routinely request access to applicant and employee personal social media.

“I’m not persuaded that these laws are necessary at all,” Gordon said. “They’re merely a solution looking for a problem.”

Gordon added, however, that both public-sector and private-sector employers have legitimate reasons at times to request and receive access to employees' personal social media pages. For example, he felt law enforcement agencies have a public safety need to know who their representatives or potential employees are affiliating themselves with. And private companies may need to be able to investigate inter-office harassment claims that may stem from social media conversations.

Gordon also noted that some state laws restricting employer access to employees’ personal social media accounts have narrow exceptions for situations such as securities fraud violations or misappropriation of trade secrets. But he doesn’t believe distinguishing between those issues and something like workplace harassment or violence makes sense, since both pose a significant threat to the employer.

“In terms of best practices, I think one thing that is absolutely critical is a broad exception for workplace investigations that permits the employer to demand that the employee, at a minimum … provide content in a personal account that is relevant to [that] investigation,” Gordon said.

Brian Heaton was a writer for Government Technology and Emergency Management magazines from 2011 to mid-2015.