Читать книгу Employment Law Update - Jonathan Ingber - Страница 56

Following the example of California and at least 15 other states, the Illinois governor signed into law in July 2016 a bill that became effective January 1, 2017 that limits employers' rights to require or request an employee or applicant to disclose a username or password to the employer; to access personal social media in the presence of the employer; or to request or require that the employee or applicant add the employer as a “friend” or similar contact. The law also prohibits the employer from retaliating against an employee or applicant for refusing to comply with such a request, and prohibits the employer from disciplining or discharging (or threatening to do so) a noncomplying employee. The law broadly defines social media to include any electronic service or account, or electronic content including email, instant and text messages, blogs, videos, still photos, podcasts, internet profiles, and locations.

The Illinois law contains exceptions that are generally consistent with the exceptions allowed by other states. These exceptions include requiring

 sharing of specific social media information reasonably believed to be relevant to an investigation of allegations of employee misconduct;

 sharing of specific social media information reasonably believed to be relevant to employee violations of applicable laws or regulations;

 the right of the employer to require or request an employee to disclose a username, password, or other information necessary to access an employer-issued device; and

 the right of the employer to monitor employee use of an employer-issued device.

Other states are expected to pass legislation in 2019 that similarly will restrict the right of employers to obtain access to applicant or employee social media.

Job applicants would be wise to consider the following findings from a 2017 CareerBuilder survey:⁷

 70% of employers use social media to screen job applicants

 69% of employers use online search engines such as Google or Bing to research applicants

 54% of employers have found social media content that caused them to not hire an applicant

As of now, no state laws prohibit employers from engaging in these types of searches — which you can see are performed by an overwhelming majority of employers. Here are a couple of cautionary points:

 If the company's hiring supervisor performs the research, he or she may learn, for example, that the applicant is of a particular race, practices a particular religion, or suffers from a disability. For this reason, social media and other searches should be performed by a non-hiring employee who is required to follow a policy that only job-relevant information is provided to the hiring supervisor.

 Any search that encompasses driver's license information, credit, or financial information may be subject to the requirements of the Fair Credit Reporting Act and similar state laws.