Illinois Amends Right to Privacy in the Workplace Act to Include Social Media

On Aug. 1, Illinois Gov. Pat Quinn (D) signed H.B. 3782, amending Section 10 of the Illinois Right to Privacy in the Workplace Act (“Act”), (820 ILCS 55), into law. See P.A. 87-807. Following Maryland’s lead, Illinois is now the second state to bar employers from demanding that employees and prospective employees provide user names or passwords linked to social networking Web sites.

The law addresses employees’ and job applicants’ right to privacy in the workplace with respect to networking sites such as Facebook and Twitter. Specifically, the law prohibits employers from requesting that employees and prospective employees provide personal identifiers for such social networking sites and from forcing, without revealing their passwords, employees and prospective employees to display portions of their social networking profiles for review.

The law, however, retains the authority of employers to maintain lawful workplace policies addressing the use of electronic equipment, the Internet, email, and social networking sites. In addition, it protects employers’ rights to obtain information about employees and prospective employees that rests in the “public domain.”

Pursuant to Section 15 of the Act, an employee or applicant alleging a violation may file a complaint with the Illinois Department of Labor (“IDOL”). Following an investigation, the IDOL has the authority to attempt to resolve the complaint by “conference, conciliation, or persuasion.” If the IDOL finds a violation and is unable to resolve the complaint, the IDOL may commence an action to compel compliance in circuit court. Further, if the IDOL fails to resolve the complaint and has not brought an action in circuit court, the aggrieved employee or prospective employee may bring a private action in circuit court to enforce the provisions of the Act, including actions to compel compliance. The circuit court may also award a prevailing employee or applicant actual damages plus costs, plus a $200-$500 penalty per affected employee, and reasonable attorney’s fees for a willful and knowing violation.

Similar legislation is gaining momentum in at least 10 other states. Given the growing intersection between work and personal communications, the impact of social media in the employment setting will likely continue to grow as a hot spot for employment legislation and litigation.

If you have any questions regarding any matters discussed in this briefing, please contact any of the Winston & Strawn Labor & Employment Relations Practice Group attorneys listed below or your usual Winston & Strawn contact.

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