NY Startup Law

A businesslaw blog for New York entrepreneurs by Marc Law Associates PLLC

ILLINOIS MAY BE THE SECOND STATE TO BAN EMPLOYERS FROM ASKING APPLICANTS FOR SOCIAL MEDIA PASSWORDS.. SHOULD NEW YORK FOLLOW SUIT?

Illinois may follow Maryland’s lead in passing legislation that ban what is now becoming part of the hiring process nation wide, asking job applicants for their social media passwords as part of the employment screening process.┬áThe Illinois Senate voted unanimously to pass this bill on May 23rd. The House had already approved the bill on March 29th. Now it just needs Governor Pat Quinn’s approval to be codified.

The main legal issue surrounding this practice is whether it is an invasion of privacy. The 4th Amendment of the Constitution gives U.S. citizens a reasonable expectation of privacy. In my opinion, asking for these passwords definitely crosses the line, but one must ask what people are thinking when they post themselves in compromising positions on the internet. An argument can be made that anyone stupid enough to post a picture of themselves doing drugs at a party gets has a lesser expectation of privacy than most, but what about the person whose picture is taken and posted by someone else on Facebook without that person’s knowledge or consent? Should this person be excluded from the applicant pool on this basis? The damage can be exponential when you consider that all of the posters “friends” can post the picture to their friends, and so on, and so on, and so on…….

Another comparison that bears mentioning is the difference between an email and a social media post. Past court decisions have held that there is no reasonable expectation of privacy in an email since it is so easy for anyone who receives it to forward its contents to others. One could argue that the same applies to social media, since the content you post is transferable to others in your community to share in their own communities as described above.

In my opinion, New York should follow suit and ban this practice. It is a, blatant invasion of privacy. I personally don’t use social media to communicate on a personal level, since I value my privacy. I don’t even allow people to take pictures of me anymore unless they convince me that they’re not going to post them on Facebook. This type of practice can also lead to people being afraid to exercise their freedom of speech, and participating in rallies and things of that nature. If this practice is not challenged, what’s to stop employers from asking for your cellphone records or your your IP address to ?follow what you’ve been looking at on the internet? I’m all for promoting business, but I personally would not feel comfortable asking for this information to hire employees.

Patrick Marc, Esq

 

 

 

 

 

 

 

 

 

 

 

 

 

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