CHICAGO – Illinois employers who try to boost their social media presence by having employees participate in their Facebook, Twitter and other online activities should reconsider that practice, a labor and employment attorney said during a recent interview.

"Illinois employers are strongly encouraged to review and update their social media policies addressing the use of their electronic equipment, including internet, social networking website and email use," Sylvia B. St. Clair, an associate at Faegre Baker Daniels, said. "These policies may address an employee’s use of a personal online account for business purpose, accessing or operating a personal online account during business hours, while on business property or connected to an employer’s network, or when using an employer-device. It should also include a reporting procedure when an employee may suspect their privacy rights were compromised."

Faegre Baker Daniels recently issued an alert to Illinois employers that ask employees to like an employer’s Facebook page or retweet company posts on Twitter is illegal under the newly amended Right to Privacy in the Workplace Act. Starting early next year, offending Illinois employers could face fines and be found guilty of a petty offense for asking, requiring or coercing employees to use their personal online account to join their employer's online groups.

The fairly recent amendment to the Right to Privacy in the Workplace Act is the latest in in a lengthy history of Illinois lawmakers advocating for stricter laws protecting employees’ privacy. The Right to Privacy in the Workplace Act was passed in by the Illinois General Assembly to prevent employers from requesting information about their employees’ previously filed claims for Workers' Compensation Act or Workers' Occupational Diseases Act claims.

About two decades later, then-Illinois Gov. Pat Quinn considered a bill to amend the Right to Privacy in the Workplace Act to prevent employers from requesting their employees’ and applicants’ social media passwords. In 2013, the Right to Privacy in the Workplace Act also prevented employers from requiring employees or applicants to provide passwords and other information.

This past summer, Illinois Gov. Bruce Rauner approved H.B. 4999, which amended the Right to Privacy in the Workplace Act to prevent employers from asking employees and applicants to provide their social media passwords on networking websites. The amendment also extends employees’ and applicants’ privacy protection beyond passwords to include usernames and personal online accounts. The amendment also added provisions barring retaliation against employees by employers.

The provisions in the new amendment to the Illinois' Right to Privacy in the Workplace Act are set to go live Jan. 1.

Illinois' legislative history in this area is not unique compared to other states, St. Clair said.

"We don’t believe so, as the act addresses employee privacy," she said. "About 20 states have enacted laws limiting an employer’s access to employees’ personal online accounts, most in the last two years."

The courts have not yet weighed in on the social media privacy aspect of Illinois' Right to Privacy in the Workplace Act, but the National Labor Relations Board has, St. Clair said.

"Recent decisions by the NLRB focus on employer’s social media policies, and provide that employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees," Stacey L. Smiricky, a partner at Faegre Baker Daniels, said. "An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."

The NLRB also limits what employers can order their employees to include in their social media sites, St. Clair said.

"Employers cannot restrain the type of information an employee can post in their own personal online account, according to the NLRB," St. Clair said. "And, as of Jan. 1, 2017, employers cannot request to access an employee’s personal online account or require an employee to authenticate their personal online account pursuant to this act."

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