Youngstown Daily Legal News

Legislation would prohibit employers from requesting social media passwords

TIFFANY L. PARKS
Special to the Legal News
Published: March 14, 2013

A Bexley lawmaker is pushing for members of the Ohio General Assembly to “like” Senate Bill 45.

The proposed legislation, which has been coined the Social Media Privacy Protection Act, would prohibit employers, employment agencies, personnel placement services and labor organizations from requiring applicants or existing employees to provide access to their private electronic accounts such as Facebook.

Sen. Charleta Tavares, who originally introduced the proposal as Senate Bill 351 in the previous legislature, said the bill was drafted to reverse recent trends in Ohio and throughout the country of employers requiring current staff and potential employees to hand over their passwords to various social media sites where they have a public profile.

“This bill is an effort to correct the invasion of the privacy of individuals who simply want to work,” said Tavares, a Democrat.

“Employees should not have to give the keys to their personal and private information just to gain or maintain employment.”

In addition to stating that employers could not mandate employees or applicants to disclose their usernames and/or passwords associated with social networking, under SB 45 employers would not be able to discharge, discipline, threaten to fire or penalize an employee who refuses to provide such information.

A violation of the bill’s prohibitions would be an unlawful discriminatory practice under the state’s civil rights law.

If enacted, SB 45 would establish a monetary penalty of up to $1,000 for a first-time violation and up to $2,000 for subsequent violations.

In recent sponsor testimony before the Senate Commerce and Labor committee, Tavares said personal online accounts generally are used to correspond with friends and family.

“Many websites, such as Facebook, give members the privilege to post their religious views, sexual orientation, personal interests, as well as, political affiliation,” she said.

“An employee or applicant should not be forced to share information about social activities that are not associated or relevant with their employment.”

SB 45 defines a “private electronic account” as a collection of electronically-stored private information regarding an individual, including such data stored on social media Internet websites, electronic devices and email accounts.

A “social media Internet website” is defined as a site that allows individuals to do all of the following: construct a public or semipublic profile within a bounded system created by the service; create a list of other users with whom the individual shares a connection within the system; and view and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

“It is evident that employers must assess a potential employee’s work ethic, however, monitoring the frequency of activity and content of personal postings, as a means of assessment is a violation of privacy,” Tavares said.

“This bill aims to protect the privacy of job applicants and does not apply to work-related accounts.”

SB 45 would not prohibit an employer, employment agency, personnel placement service or labor organization from monitoring the electronic accounts of employees or applicants on the Internet system of the employer.

Tavares said representatives of social networks have spoken out against employers requesting social media passwords.

“Since 2011, Facebook has issued statements to the Associated Press urging employers to cease and desist such practices as it is in violation of their privacy clause,” she said.

“I understand the need for employers to take proper precautions in order to ensure that they are investing and hiring candidates who are qualified, dependable and astute (but) there are procedures in place such as background checks and drug screenings that allow employers to obtain information.”

Tavares said that while it is common knowledge that employers search for public profiles of potential employees in order to make judgments about the applicant’s character and personality “requesting access to that individual’s personal profile reaches far beyond that scope.”

If SB 45 is signed into law, Ohio would join six other states, California, Delaware, Illinois, Maryland, Michigan and New Jersey, who passed similar bills in 2012.

Twenty-one states have similar bills pending.

Tavares said the practice of using social networking websites for employment screening has spilled over into the world of academia.

“Approximately, 80 percent of college admissions offices are viewing potential students’ personal accounts. They argue that such activities are a means of determining if the students’ lifestyles and personal interests fit in with the values and semblance of the school,” she said.

“With college acceptance and matriculation rates decreasing yearly in the state of Ohio, these discriminatory practices make it even harder for teenagers and young adults to pursue further education.”

While SB 45 is focused on employers, Tavares said she is concerned about the evolution of using social media to weed out college applicants.

“There ... might be an opportunity to expand this bill to include institutions of higher education,” she said.

SB 45 was scheduled for a second committee hearing Wednesday.

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