Social media generates amendment to Right to Privacy Act

Can an employer in Illinois lawfully require an employee to provide a password or access to his or her LinkedIn account? Under the recent amendment to the Illinois Right to Privacy Act, it depends on whether the account is considered a “professional account” or a “personal account” 820 ILCS 55/10.

The Illinois Right to Privacy in the Workplace Act provides certain privacy protections for employees from certain employer inquiries and employer decisions. The Act contains enforcement provisions allowing recovery of actual damages and reasonable attorneys’ fees and costs for violations.

The Act was previously amended effective January 2013 to prohibit employers from requesting or requiring that an employee or applicant provide passwords or other related account information to access accounts or profiles on social networking websites. It also prohibits employers from demanding access in any manner to an employee’s or applicant's account or profile on a social networking website.

Effective January 1, 2014, the Act was again amended so that its bar against employer requests for information about an employee’s social networking profile or website applies only to the employee’s “personal account.” Such inquiries can now be made so long as they pertain to a “professional account.” The Act defines a professional account as “an account, service or profile created, maintained, used or accessed by a current or prospective employee for business purposes of the employer.” A personal account is defined as “an account, service or profile on a social networking website that is used by a current or prospective employee exclusively for personal communications unrelated to any business purposes of the employer.”

With so much business being conducted on networking sites such as LinkedIn, which may also be used for personal communications unrelated to any business purpose, the amended Act does not provide clear guidance in all cases. Employers doing business in Illinois should review their employment and hiring policies to ensure that employees and applicants are not asked for or required to provide prohibited account information or access to certain social media accounts and profiles. Employers that violate the new law may be liable to employees and applicants in a civil suit.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client Alert authored by: Ryan A. Haas