This year saw a flood of news articles relating to the issue of whether employers could (or should) be permitted to ask their employees and prospective employees for social media passwords. As the year progressed, many state legislatures quickly jumped in to address the issue.

Status of legislation

Maryland was the first state to introduce and pass legislation prohibiting employees from requesting or requiring employees or job applicants to disclose their online passwords and account access information. Illinois quickly followed with its own law protecting the social media passwords and account information of employees and prospective employees. On Sept. 27, California became the third state to pass employee and job applicant password and social media content protection legislation.

In addition to these three states, the following 11 states introduced bills in 2012 that attempted to address the issue of an employer’s ability to access the social media sites of its employees and prospective employees: Delaware, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, Pennsylvania, South Carolina and Washington.

How should companies react?

In light of these new laws and proposed bills, what should companies do? The answer is fairly straightforward in those states that have passed password legislation: Don’t ask your employees or job applications for passwords or social media account information.

But even in states that have not passed legislation banning the practice, companies would still be well advised not to ask employees or job applications for their private social media account related information. Here are some reasons why companies should be careful about seeking such access and information:

• Anti-discrimination laws. Federal laws, such as Title VII of the Civil Rights Act of 1964, and similar state laws, prohibit employment discrimination on the basis of matters such as an individual’s race, color, religion, sex or national origin. By asking to obtain access to the personal (and otherwise private) information of employees and job seekers, an employer runs the risk that it could gain access to information about the membership of an employee or applicant in a class protected by anti-discrimination laws. Knowledge of that information could make an employer more vulnerable to discrimination charges if it subsequently takes adverse action against the employee or fails to hire the applicant.
• National Labor Relations Act. Section 7 of the National Labor Relations Act (NLRA) gives employees the right to form unions, bargain collectively and engage in concerted activities for the purpose of mutual aid or protection. This right has been held to prevent employers (including employers of nonunion workers) from limiting employee discussions regarding job conditions or sending emails critical of specific managers or company policies. It is also an unfair labor practice under the NLRA for employers to conduct surveillance of union-related activities. By asking for employee social media passwords, an employer could be in danger of committing an unfair labor practice under the NLRA. 
• State privacy rights. Some states have laws and constitutional provisions that grant privacy rights to its citizens. Those privacy rights may extend to protect employees and job applicants against employers who seek to obtain access to nonpublicly available information concerning such persons—particularly if the employer has little business justification for obtaining such information.
• Employee Morale. Perhaps the most important consideration companies should keep in mind before asking for social media passwords from their employees and job applications is the impact such requests will have on employee morale. An employee will not likely be motivated to perform for an employer that is constantly monitoring all aspects of the employee’s life.

Although only three states have enacted legislation expressly prohibiting employers from asking employees or job seekers for their social media passwords, companies in all states should avoid seeking such information lest they find themselves in violation of other laws.