New York Governor Kathy Hochul has enacted legislation, Bill A836, prohibiting employers from demanding access to personal social media accounts of employees or job applicants.
The law, signed on September 14, 2023, declares it illegal for employers to request login credentials, passwords, or authentication details for personal accounts on electronic devices. Furthermore, employers are barred from coercing individuals to disclose such information, accessing personal accounts in their presence, or reproducing content obtained through prohibited means.
The legislation defines “employer” expansively, encompassing any person or entity engaged in business, trade, or profession in New York, along with their agents or representatives. Crucially, the law extends protection to employees and job seekers, making it unlawful for employers to take adverse actions or deny employment based on an individual’s refusal to comply.
New York is the latest to join a growing list of states banning employers from requiring personal social media login credentials from employees. Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, West Virginia, and Wisconsin all have similar legislation.
If you’re finding it strange that a ban needed to be imposed for this, it’s because the act of requesting social media login information is not inherently illegal. And because asking for specific protected information is illegal, having private access to the employee or potential employee’s private account circumvents that.
There has been a surge in employers requesting Facebook and other social media login credentials from job applicants and current employees. More and more employers want to look into an individual’s online presence, to make sure that the employee or potential employee is the same in how they portray themselves professionally and privately (i.e. that they don’t get catfished). It also helps employers verify if employees are making any inappropriate statements about the organization.
The practice raises significant concerns related to employment discrimination. Granting an employer access to social media accounts provides them with information that is generally off-limits during the hiring process, such as details pertaining to race, gender, religion, age, and other protected characteristics.
This thus breaches laws enforced by the Equal Employment Opportunity Commission (EEOC), designed to prevent discrimination based on factors like those protected under the Civil Rights Act, Age Discrimination & Employment Act, and others.
Worse, they will also get access to the employee or potential employee’s private messages and activity. It’s really like giving your parents your passwords but worse because your career depends on it.
The new New York law will take effect on March 12, 2024.
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