September 2012

By: Anthony J. Caruso, Esq.

“Don’t Ask / Don’t Tell” – sounds like something Archie Bunker would have said in the old family sitcom “All in the Family.” Unfortunately, as most of us know, the concept of “Don’t Ask / Don’t Tell” has been in use by our military for the last few decades and is now bleeding into the employment arena.

Illinois is the second state (State of Maryland has a similar law) that has made it illegal for employers to ask job applicants and current employees for passwords to their online profiles (Facebook, Twitter, etc.). The bill, signed by Governor Quinn on August 1, 2012 with the law becoming effective January 1, 2013, leaves no exceptions or exclusions for any employers and, in fact, does not even exempt openings that may require more thorough background checks.

This legislation will not stop an employer from viewing information that is not restricted by a password or other privacy setting on a work site, nor does it exempt any employee from established workplace policies with regard to the internet, social networking sites or electronic mail use that are being accessed during the workday by employees.

The law provides that any individual harmed (?) by an employer can initiate an individual lawsuit that would have penalties ranging from $100 to $300 and has the potential for even costing an employer much more. There are a number of other states (Washington, Delaware and New Jersey) that are considering similar legislation and there is little doubt that the Federal Government will soon enter the fray to prohibit this frightful invasion of privacy rights.

It is strongly recommended that every employer review its computer use policy and specifically its policies with regard to the use of the internet, social networking sites and electronic mail procedures. Make absolutely certain that your policies are valid, specifically in the states of Maryland and Illinois and, in all probability, in a few short years in a majority of states.

If you have questions about this topic, please call attorney Anthony J. Caruso of Wessels Sherman’s St. Charles, IL office at (630) 377-1554