Under a new proposed rule by the City Council in Philadelphia, employers in Philadelphia County would be prohibited from accessing the social media accounts of job applicants or actual employees. In fact, employers wouldn’t even be permitted to request such information nor use it if permission were granted.

Password-Protected Information

The heart of this issue is whether a job applicant or current employee should be required to divulge their private, password-protected, social media account information. The law would not apply to information that the candidate or employee chooses to make accessible to the public and is not protected by a password. Further, the proposed law would prohibit an employer from directing an employee or job applicant to log on to a social networking website while in the presence of the employer or potential employer.

An employer may ask, “But what if I did ask? What’s the worst thing that can happen?”  The proposed law includes an anti-retaliation provision as well, i.e., if the employee or job applicant refused to divulge the password to a protected social media site, and the applicant was not hired because of this or a current employee’s terms and conditions of employment were affected by this refusal (e.g., demotion, termination, etc.), the individual may have a cause of action against the company.

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Just because a company cannot require an applicant or current employee to give up his/her personal password, does not mean that the company is powerless over what social media an employee may access during working hours.  An employer may still monitor the usage of an employee’s electronic equipment and e-mail (so long as such monitoring does not permit the employer to gain unrestricted access to the employee’s personal social media accounts or email in many states) or such information is in the public domain or otherwise obtainable in a legal way.

What’s At Stake

Recoverable damages to a plaintiff who has his/her rights violated and is successful in a case involving the above scenarios include:

• compensatory damages
• attorneys’ fees
• forms for injunctive relief

States, such as Illinois, California, and Michigan have already enacted similar laws to the one proposed in Philadelphia. Companies should be on the lookout if they have offices in these states or if they are located in a state which may enact similar laws.