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IRPWA to Further Limit Employers' Access to Employees' Online Accounts

The Illinois Right to Privacy in the Workplace Act ("IRPWA" or "Act") was recently amended to expand the protections afforded to employees in Illinois. The amendments to the Act take effect January 1, 2017, and the potential for employer liability will increase under the amendments. Consequently, Illinois employers should educate their human resources and managerial personnel and review their company policies and interview practices with experienced employment counsel to best ensure compliance prior to that date.

Currently, as it relates to internet and social media use, the IRPWA prohibits employers from requesting or requiring that a job applicant or employee disclose a password or "other related account information" for their account or profile on a "social networking website." The current version of the Act specifically excludes email from the definition of a "social networking website." The Act also currently allows employers to gain access to employees' "professional accounts," a/k/a accounts used, created, or maintained for the business purposes of the employer.

As of January 1, 2017, it will be illegal for an employer or potential employer to:

  • Request or require the employee or applicant provide their user name or password or any related account information or to demand access in any way to the person's personal online accounts;
  • Request or require the employee or applicant to access a personal online account in the presence of the employer;
  • Require an employee or applicant to join a group affiliated with an online personal account, join an online account established by the employer, or to add the employer to the employee's list of contacts so the employer gains access to the personal online account;
  • Retaliate, discriminate, discipline, or penalize an employee for refusing to do any of the above or for reporting violations of the IRPWA;
  • Fail to hire an applicant for refusing to do any of the above prohibited actions.

Notably different from the current version of the law, the IRPWA amendments define personal online accounts as all online accounts used by a person primarily for personal purposes. The new definition presumably includes an employee's personal email accounts, therefore prohibiting the employer from gaining or requesting any sort of access to those email accounts.

Further, if an employer inadvertently receives the username and password of the employee or applicant's personal online account they must delete the information as soon as is reasonably practicable (unless it is being retained as part of an ongoing security-breach investigation). The employer must delete the information even if it was gathered automatically through the use of monitoring technology used for network or data security. Employers must review their monitoring policies and programs to ensure that this newly protected data is not stored or is deleted as soon as the employer knows about it.

The Act will still allow employers to maintain policies that govern and/or monitor the use of their computers, the internet, email, and social networking sites. The amendments also allow employers to require the employee or applicant share specific content from their personal accounts that has been reported to the employer (without requiring a username and password or full account access) to ensure compliance with applicable laws, to investigate allegations of misconduct, to prohibit an employee from using the personal online account for business purposes or accessing the account during business hours, while on business property, or while using employer devices or networks.

Illinois employers should also know that the IRPWA also prohibits employers from asking about previous workers' compensation claims filed by the applicant or employee. The Act also prohibits employers from taking adverse action against an employee for use of lawful products off the premises during nonworking hours (with exceptions for non-profit employers whose purpose is to discourage the use of said lawful products), so long as they do not impair the employee's ability to perform his or her job.

As always, Illinois employers should seek the advice of experienced counsel for issues relating to the application of the IRPWA and its new amendments to their business.

Tyler J. Bohman, Esq. is an associate attorney at Wessels Sherman Joerg Liszka Laverty Seneczko, P.C. a management-side labor and employment law firm in Chicago, Illinois. Mr. Bohman can be contacted at 312-629-9300 or at tybohman@wesselssherman.com

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