Last week, Washington and Oregon became the ninth and tenth states respectively to enact laws preventing employers from accessing current and prospective employees' social media accounts. These laws, which are designed to protect employees' privacy rights, vary in their provisions. However, the laws generally prohibit employers from asking current and prospective employees to provide their user names and passwords to personal social media accounts, with certain exceptions.

Over the last few years, employers have found multiple uses for social media, including using public social media information for conducting background checks of candidates for employment, as well for vetting current employees. Use of social media for background check purposes offers benefits for employers, but also imposes risks, including exposure to protected class and other sensitive information that could expose employers to claims under various federal and state employment laws. For more information on online searches and background checks, see Practice Note, Background Checks and References: Background Checks Using Online Searches and Social Networking Websites.

Despite the risks of using social media for background checks, sometimes employers have gone beyond use of publicly available social media information and asked current and prospective employees for user names and passwords for their private social media accounts. In response to public outcry against this practice and in recognition of individuals' privacy rights, several states over the last year have enacted laws to prevent employers from asking for this private information, including:

Congress also began considering a federal version of this legislation in April 2012. The legislation was reintroduced in the House of Representatives this month as the Password Protection Act of 2013 (H.R. 2077).

Although state social media access laws share a common goal of protecting an individual's right to maintain the privacy of their social media information, they vary in terms of their restrictions. The majority of these laws prohibit employers from:

Although the specific limitations and exceptions to these restrictions vary under each state law, common exceptions permit employers to:

Practical Law has resources to help employers and their counsel understand the restrictions and requirements imposed on employers by state social media access laws.

For a chart specifying the prohibited conduct and the specified limitations and exceptions for each state's laws, see Practice Note, Employer Access to Social Media Accounts State Laws: Overview.

For more information about background checks and employee privacy, see Practice Notes, Background Checks and References and Privacy in the Employment Relationship.