Careful What You Ask For — New Wisconsin Law Bars Employers From Requiring Disclosure of Social Media Passwords
Labor & Employment Law Alert 04/11/14 Nicholas O. Anderson
Wisconsin has passed legislation prohibiting employers from requiring job seekers or employees to disclose their private social media account information. Gov. Scott Walker signed the bipartisan bill into law on April 8, 2013, and it is now in effect.
The new law specifically prohibits employers from asking an employee or applicant to “grant access to, allow observation of, or disclose information that allows access to or observation of the personal Internet account” of the applicant or employee. The legislation also prohibits an employer from discharging or otherwise discriminating against any person for exercising the right to refuse such a request and allows aggrieved individuals to file a complaint with Wisconsin’s Equal Rights Division.
As a practical matter, this new law echoes our longstanding advice to employers: Be careful what you ask when screening job applicants. It is generally better for hiring managers not to know certain information about an applicant before making an employment decision. If an unsuccessful job seeker claims the hiring decision was discriminatory, the employer is in a much better position if it can simply show it did not ask, did not obtain, and did not know about the applicant’s status in a particular protected classification. That defense becomes difficult to make if, for example, the employer reviewed the applicant’s private Facebook page as part of the application process. For example, even a cursory review of an applicant’s private Facebook page may be enough to put an employer on notice of the applicant’s age, race, marital status, sexual orientation, political affiliation, and religious views.
Wisconsin’s new law does contain several explicit exceptions that benefit employers. For example, employers are still allowed to monitor company-owned computer systems and may compel employees to cooperate in investigations of alleged unauthorized use of confidential information. In addition, the law does not prevent employers from observing an applicant’s publicly-available social media information. But, the same practical considerations discussed above apply — be careful what you look for. While the law does not bar employers from reviewing internet postings that are not password protected — for example running a simple “Google” search on a prospective employee — that practice still poses risks, chief among them how to defend against the claim of an unsuccessful applicant who alleges she was not hired because of information the employer learned about her status in a protected classification from a Google search.
Ensuring compliance with Wisconsin's new law will put multistate employers in a good position nationwide. Over a dozen states — including California, New Jersey, and Illinois — already have similar laws restricting employers from asking applicants or employees for passwords to their private internet accounts, and such legislation has been introduced or is pending in over 30 other states.