Clients (both employers and employees) frequently ask me whether employers may ask employees for their private social networking account user IDs and passwords.  Although this may currently be permitted in some states, there is a clear legal trend towards prohibiting this practice.

Two states, Illinois and Maryland, passed laws this year prohibiting employers from asking employees or job applicants to provide their personal social networking account IDs and passwords, and legislatures in a number of other states, including California, are currently considering enacting similar laws.[1]  Some of these bills go even further than the Illinois and Maryland laws.  For example, the New Jersey bill would prohibit employers from asking employees or job applicants if they have personal social media accounts.

In addition, the U.S. House of Representatives, Committee on Education and the Work Force is currently considering the Social Networking Online Protection Act (“SNOPA”) which, if passed, would prohibit employers from:  (1) requiring employees or job applicants to provide the employer with a user name, password or any other means for accessing a private email account or social networking account; or (2) discharge or discipline an employee, or deny employment or promotion to any employee or job applicant who declines to provide such information.

On May 9, 2012, identical bills called the Password Protection Act of 2012 were introduced in the U.S. House and Senate.  If enacted in its current form, employers would be prohibited from compelling or coercing any employee or job applicant to provide information that would enable the employer to access a computer not owned by the employer.

We will continue to review changes in the law with respect to this issue, but given the recent increase in legislation in this area, employers should seriously consider whether the benefits of obtaining such information outweigh the risks of potentially violating the law.

If you have any questions about how these laws apply to you or your company, please contact Helen Christakos at (650) 696-2545 or at hchristakos@carr-mcclellan.com.