Recently, several states enacted or proposed legislation that prohibits employers from requesting social media networking passwords. Earlier in April 2012, Maryland became the first state to pass a law that protects employees from employers who require job applicants or current employees to disclose their social media passwords to sites such as Facebook, Twitter, or LinkedIn, to access their social media information for use in employment decisions. Other states, such as New York, New Jersey, Washington and California have also proposed similar bills that would ban employers from demanding such information. The New York bill even prohibits an employer or an employer’s agent, representative or designee from requiring this information. Ultimately, these laws prohibit employers from refusing to hire, terminating, disciplining or in any other manner penalizing an individual for failing to provide their social media passwords. This legislation was sparked when several U.S. Congressmen contacted the Equal Employment Opportunity Commission and the U.S. Department of Justice to request an investigation into whether employers are violating any anti-discriminatory, fraud, or privacy laws by requiring employees to involuntary disclose social media networking passwords.
Tennessee employers should be leery and careful of requiring or requesting employees to disclose their social networking passwords due to the implications that this information could be construed as confidential and such practice may possibly be unlawful. While there are no Tennessee statutes prohibiting employers from requesting or utilizing social media information, these actions could be viewed as discriminatory because the law on social media in the employment context is such a grey area. As a best practice, employers should refrain from asking for this sensitive information as it could provide insight into an applicant’s or employee’s protected class information, among other things. Nevertheless, an employer must certainly be cautious of using information gained from social media networking as a factor in any employment decision due to the potential that it may invoke violations of federal and state anti-discrimination laws.
– Carlyle C. White