The Governor of Illinois approved H.B. 4999/Public Act 99-610 on July 22, 2016, which amended the Illinois Right to Privacy in the Workplace Act (IRPWA) to provide further protections to employees’ privacy regarding their personal online accounts. The term personal online account has been defined as “an online account, that is used by a person primarily for personal purposes.”
The IRPWA had initially only prohibited employers from inquiring about an employee’s application to or receival of benefits under the Illinois Workers’ Compensation Act (WCA) or Worker’s Occupational Diseases Act (WODA). However, the new amendments to the IRPWA have widely broadened the scope of privacy protections afforded to employees under the Act. The new amendments to the IRPWA, effective January 1, 2017, indicate that it is unlawful for an employer or prospective employer to:
- Request, require, or coerce an employee or applicant to authenticate or access a personal online account in the presence of the employer;
- Require or coerce an employee or applicant to invite the employer to join a group affiliated with any personal online account of the employee or applicant;
- Require or coerce an employee or applicant to join an online account established by the employer or add the employer or an employment agency to the employee’s or applicant’s list of contacts that enable the contacts to access the employee or applicant’s personal online account;
Further, the amendments include a retaliation provision making it unlawful for an employer to retaliate against any employee for refusing to engage in any of the behavior listed above and a provision making it unlawful to refuse to hire an applicant because of his/her refusal to provide access to personal online accounts, as described above.
The IRPWA does not prohibit employers from maintaining lawful workplace policies regarding usage of the Internet, email, and social networking or employer’s electronic equipment. Further, it does not prohibit employers from monitoring employee use of employer electronic equipment or online activity while at work. However, if during such monitoring, an employee’s personal online account information is obtained inadvertently, employers must secure the information and delete it as soon as is reasonably practicable, unless the information is being retained in connection with an ongoing investigation related to employer’s electronic equipment and/or employee’s Internet usage.
Technology and social media are continuously evolving, making it sometimes challenging to keep the line between personal and professional from becoming blurred. Many employers throughout the United States are using the advancements in social media as key marketing tools for their businesses. In doing so, employers encourage employees to join employer social media groups and “like,” “follow,” “tweet,” “share,” etc. employer’s posts in an attempt to have employer marketing efforts reach a larger audience. If an employer in Illinois was to require or coerce an employee to take this sort of action, they would be open to liability for violation of the IRPWA.
Employer Take Away: Employers should revise their social media and Internet usage policies to comply with the new amendments to the IRPWA. Further, employers should be mindful of any actions they take which involve employees’ personal online accounts and could be seen to blur the line between personal and professional.