Big Brothers Blindfold
It's officially illegal:
Michigan employers can no longer request access to the private online accounts
of potential or current
employees as part of hiring
or review practices.
This past December, Governor Rick Snyder signed House Bill 5523 – also known as the Internet Privacy Protection Act (IPPA) – into law.
The bill, which took immediate effect, prohibits employers from requesting that an employee or applicant "grant access to, allow observation of, or disclose information that grants access to or allows observation of" personal accounts like Facebook, Twitter or Gmail.
In essence, employers may no longer require workers to turn over their login information or passwords for private online accounts, nor monitor them as they use such accounts.
The legislation comes on the heels of increasing tensions across the country between employers looking to gain insight into applicants and employees by monitoring their online behavior versus workers who protest that such observation is a violation of privacy.
Michigan is one of six states – including Maryland, Delaware, New Jersey, California and Illinois – that has outlawed the practice. In each of those states, legislation has come about only in the past year. At least eight other states now have pending legislation that addresses the issue.
Janis Adams, an attorney specializing in labor and employment law at Smith Haughey Rice & Roegge in Traverse City, said that some exceptions to the law still exist.
"If an employer pays for the communication device being used to access accounts, such as a smartphone or laptop, they can request information to gain access to that device," she said. "The same goes for accounts or services provided by the employer or stored on the employer's network."
Employees still have a legal responsibility to honor company privacy policies and confidentiality agreements while engaged in online activity, especially for company's financial or proprietary information. If an employer suspects an employee has posted sensitive job-related information on Facebook, for example, that employee can be required to participate in an investigation that may include allowing access to his or her personal accounts.
There is an important fine line, however.
"Because of laws protecting collective bargaining," Adams said, "you can't prevent employees from talking with one another online about the company or sharing information such as their salaries."
Even employees complaining about their employers online are relatively protected under the law, because such complaints could potentially stem from the condition of the workplace or payment/benefit plans. Only when an employee shares financial or proprietary information would there be reasonable grounds for an investigation by an employer.
"Employers should always consult with their attorneys, especially when faced with a potential situation with an employee, because this is an ever-changing landscape of law," Adams said.
Company HR departments aren't the only groups adjusting to the new legislation. Under IPPA, universities and other educational institutions are prohibited from accessing personal online accounts – both of their staff and of their students.
No longer can a college admissions officer require a student to divulge their login information to determine whether they're a right fit for the school, or evaluate students for appropriate behavior by monitoring their online accounts.
Individuals found violating the law – whether at a company or an educational institution – face a possible misdemeanor penalty and a fine of up to $1,000. Additionally, victims may bring civil action lawsuits against violators for up to $1,000 in damages, plus attorney fees and court costs.
While the legislation has been viewed as a victory for workers, students and privacy advocates, Adams said that employers and educational institutions can nonetheless view any online content or accounts that are publicly accessible – most notably on Twitter and Facebook.
Users should be conscious of their privacy settings, she said, though employers and admission officers must also exercise caution in using information gleaned online to make hiring or admissions decisions.
"There is a lot of information that can be found online which is now illegal to consider in a hiring decision – such as gender, race, religious affiliation or disability," Adams said. "To be on the safe side, employers would be best served by avoiding online personal accounts unless necessary, and checking with an attorney when they do to ensure they're complying with the law."