The Illinois FOP Labor Council

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By Rob Scott, Attorney - Friday, September 9, 2016

 

Who would have predicted the electronic world that we all live in now? This electronic world has been constantly evolving with different bits and pieces taking off at different times. Without a doubt one of the biggest evolutions in the last five or six years has been in the area of personal social media sites. According to the website Statista.com, as of the second quarter of 2016 Facebook had 1.71 billion monthly active users. With the increase in personal social media the implications in legal issues related to same have increased. Simply put, many states are behind the times in attempting to adjust their legal framework to address issues raised via a person’s online presence.

Illinois has passed Public Act 99-610 which will amend The Right to Privacy in the Workplace Act effective January 1, 2017. The amendments are designed to address the relationship between Employers and Employees who may have social media presence.

Currently the Act makes it unlawful for an Employer to inquire, via the applicant or an applicant’s former Employer, about whether he/she has ever filed a workers’ compensation claim or sought benefits under the Occupational Disease Act. The current act also prohibits an Employer from requiring or requesting any passwords or account information for the purpose of accessing that person’s account.

As of January 1, 2017, the law will be broader. The Act will, going forward, make specific reference to “online activities.” The Act will also expand the protections offered by including prospective employers as opposed to just current employers.

Further, the amended Act will make it illegal to coerce an employee or prospective employee to provide a user name or password for a personal account; to force an employee or applicant to log into an account in the presence of the employer; to require an employee or applicant to invite the employer to join a group affiliated with an online account or to force an employee or applicant to join a group affiliated with the employer. Lastly, neither an employee nor an applicant can be punished for refusing to comply with such an unlawful request or for reporting a violation of this Act.

There are some final points related to this Act and the pending amendment which are worth noting. The first is that while the law is expanding it still does not prevent an employer from promulgating lawful workplace policies regarding internet use and equipment or from monitoring Employer owned electronic equipment. The law also does not prevent an Employer from requesting information related to content that has been reported to the Employer as possible violations of policy or law or if related to an account supplied, owned, operated or paid for by the Employer. Finally, it is not insignificant that the law is silent regarding what actions can or should be taken if an employer or prospective employer should violate this law. My suspicion is that should a violation of this law occur an affected individual would be hard pressed to find a satisfactory method for resolving the violation. The law may simply be a tiger without teeth.