Gary R. Clark quoted in article “Varied Facebook Password Laws Could Plague Employers”Law360 08/02/12
Illinois on Wednesday became the second state to enact a law banning employers from requesting passwords for Facebook and other social media accounts from employees and job applicants, reflecting a growing trend that attorneys say may lead to a patchwork of state laws that will create headaches for national employers.
The Illinois statute signed into law Wednesday by Gov. Pat Quinn, which takes effect Jan. 1, 2013, bars employers from demanding passwords or otherwise accessing the nonpublic portions of workers' social media profiles. It does, however, allow employers to view information that is not shielded by the owner with a privacy setting and does not prohibit employers from maintaining policies that govern their employees’ access to social networking websites while at work.
“The law may protect some employers from themselves to the extent that they were trying to do this,” Gary Clark of Quarles & Brady LLP said, noting that he was not aware of any companies that actually engaged in the practices prohibited by the Illinois law.
“Facebook and other social media have some pretty private things that employers shouldn't be delving into and really should not know when making hiring and other employment decisions,” Clark said. “It's an issue of you don't know what you're going to find out, and once you find out you can't unring the bell.”
Viewing workers' profiles could give employers access to all kinds of information about characteristics that are protected by federal law from being considered in hiring and other employment decisions, such as disability or religion.
Originally published in Law360, August 2, 2012