Since its inception, social networking has been on a collision course with employment hiring and firing practices. Increasingly, employers are investigating their employees’ and applicants’ Facebook pages for information to assist in hiring and firing decisions. In a 2009 survey from Careerbuilder.com, 45% of employers responded that they searched applicants’ Facebook pages for information to help in the vetting process. Of those employers, 35% responded that they were searching for information to remove an applicant from consideration for a job.
The term for this social media sleuthing is “Facebook fishing” and it is legal for employers to do. It is also legal for employers to base their hiring and firing decisions on what they discover, as long as they do not violate Title VII of the Civil Rights Act prohibitions against discrimination based on race, color, religion, sex, or national origin. The only other limiting factor for employers engaging in Facebook fishing is the employees’/applicants’ Facebook privacy settings, which may limit access to their Facebook page to only those with whom they are “friends”. Employers, however, are increasingly requesting employees and applicants to provide their social media passwords in order to keep their jobs or be considered for a job.
The Illinois legislature recently moved to protect employees and applicants from having to provide their social media password information. The Illinois House of Representatives introduced House Bill 3782 (“HB 3782”) which would make it unlawful for any employer to request or require any employee or prospective employee to provide any password or related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website. The Illinois House of Representatives passed HB 3782 on March 29, 2012 by a 78-30 vote. HB 3782 then went to the Illinois Senate and, on May 22, 2012, the Illinois Senate approved it by a vote of 55-0. It is now up to Governor Quinn to decide whether to sign HB 3782 into law.
Assuming Governor Quinn signs HB3782 into law, employers will lose a tool in the process of monitoring employees and vetting job applicants. Employees and applicants, however, should be aware that the bill does not prohibit employers from Facebook fishing without requiring the employee/applicant to provide their password information. Employers should be aware, and should make clear to employees, that they can monitor websites and hold employees responsible for violating company policies. The bill balances employers interests in monitoring employees and vetting applicants while also protecting employees’ and applicants’ interest in protecting their privacy.