There is a nascent legislative trend seeking to prohibit employers from asking applicants and employees for usernames and passwords to their social media networking sites. This is a reaction to stories of employers seeking access to personal social media sites to gather information that they then use to make employment decisions. In a process sometimes referred to as “cyber-screening,” employers have sought access to applicant passwords in order to vet potential candidates and obtain telling information about them. Employers also desire to know how employees are portraying the employer or its products or services, or what they may be communicating while on employer-owned computer systems.
Congress is currently considering two related bills. In April, Reps. Eliot Engel and Jan Schakowsky introduced the Social Networking Online Protection Act, which would prohibit employers from requiring or asking an employee or applicant to provide a username, password or any other means of accessing a private email account or personal social media account, or from discharging, discriminating or threatening any employee or applicant who refuses to provide such information. The legislation also prohibits retaliation for exercising rights under the act. Moreover, the legislation applies to educational institutions and students. It provides for civil penalties, Department of Labor injunctive relief and a private right of action in the federal courts for damages and equitable relief.