Employers in Philadelphia would be barred from gaining access to the social media accounts of job applicants or employees under new legislation proposed by City Council. Bill No. 130121, introduced on February 21, 2013, would amend Title 9 of The Philadelphia Code, “Regulation of Businesses, Trades and Professions.” 

Under the Bill, employers in Philadelphia would be prohibited from requesting or requiring access to an employee’s or prospective employee’s account or profile on a social networking site. The Bill also would prohibit employers from obtaining direct access by requiring the employee or applicant to log on to a social networking site in the presence of the employer, or indirectly through any other person who is a social networking contact of the employee or applicant. 

In addition, the Bill contains a prohibition on employer retaliation, including discipline, discharge, and refusal to hire, where an employee or applicant refuses to disclose his or her username, password, or other related account information.  

The Bill does give the employer the following protections. Employers may:

  • Establish and maintain lawful workplace policies governing the use of the employer's electronic equipment
  • Monitor usage of the employer's electronic equipment and electronic mail, without requesting or requiring an employee to provide any password or other related information to gain access to the employee's personal account or social networking profile
  • Obtain information about an employee or applicant that is in the public domain or otherwise obtained in compliance with the law
  • Terminate or take adverse action against an employee or applicant if otherwise permitted by law
  • Request username and password information through a formal discovery process relating to litigation

The Bill provides broad enforcement powers to the office or agency that the Mayor designates to enforce the Bill's provisions. These include, but are not limited to, the power to issue a cease-and-desist order, require payment of compensatory damages and attorneys' fees, and order injunctive relief.  

Philadelphia is not the first city or state to consider legislation protecting prospective and current employees' right to privacy in the area of social media. Last year, Maryland passed a law making it the first state to prohibit employers from asking or requiring that prospective or current employees provide a username, password, or other means for accessing their personal online accounts. Since then, Illinois, California, and Michigan have passed similar laws prohibiting employers from requiring employees or applicants to divulge social media passwords. Other states such as New Jersey, Ohio, and Pennsylvania are also considering similar legislation.

If the ordinance is passed, Philadelphia employers will need to review their hiring procedures and employment practices to ensure compliance. Employers elsewhere should weigh carefully the benefits and risks associated with seeking an applicant’s social media profile during the hiring process, and should exercise caution and identify a legitimate business purpose before accessing the accounts of current employees.

Attorneys in Ballard Spahr’s Labor and Employment Group routinely advise employers on the use of social media in the hiring process and the workplace. If you have questions, please contact Shannon D. Farmer at 215.864.8221 or farmers@ballardspahr.com, Meredith C. Swartz at 215.864.8132 or swartzm@ballardspahr.com, or the member of the group with whom you work. 

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