Lawmaker seeks exceptions to 'Facebook Law' for employers

While the so-called “Facebook Law” approved by the Illinois General Assembly last year aims to protect the privacy of employees and job applicants, one lawmaker said it has created some unintended consequences for the state’s employers.

Signed by Gov. Pat Quinn in August, Public Act 97-0875 amended the Right to Privacy in the Workplace Act to prohibit employers from requesting passwords or other account information in order to access the social networking pages of current or prospective employees.

Rep. Jim Durkin, R-Western Springs, on Wednesday told members of the House Judiciary Committee that although the “Facebook law” is well-intentioned, it places unreasonable restrictions on the ability of an employer to properly investigate workplace misconduct and crime.

Durkin earlier this year introduced House Bill 1047 as a “clean up” to the “Facebook Law” and on Wednesday, the House committee passed it with a vote of 12-1, sending it to the full House for consideration.

He said in a statement that as currently written, P.A. 97-0875 basically puts “hand-cuffs” on the ability of employers to manage their businesses and believes his new proposal "respects the privacy of employees and protects the legitimate interests of employers."

Under Durkin's measure, employers would be able to request or require employees to disclose their user names, passwords and other information for accessing any electronic device supplied or paid for by the employer, as well as for any accounts or services provided by the employer or that the employee uses for business purposes.

HB1047, however, prohibits employers from discharging, disciplining or penalizing employees solely on the basis of an employee’s refusal to disclose this information. It also prevents employers from failing or refusing to hire prospective employees who refuse to disclose their online profile information.

Durkin’s proposal also states that nothing in the Facebook Law shall prevent employers from conducting investigations, whether for the purpose of looking into misconduct alleged by other employees or protecting the security of the employer’s systems and trade secrets.

The current version of the law, Durkin said, states that an employer never has a legitimate business reason to request an employee’s information for accessing their social media accounts.

“If there was no such thing as workplace discrimination or trade secrets, I would agree,” Durkin told members of the committee. “Employers need to be able to reasonably monitor their intellectual property and have a safe workplace.”

David Glockner, the managing director of Stroz Friedberg in Chicago, testified in support of HB1047. Before he joined the digital risk management and investigations firm, he served as Chief of the Criminal Division of the U.S. Attorney’s Office in Chicago.

He told the committee that three other states have a similar Facebook Law on their books, but that Illinois is the only one that doesn’t provide exceptions to employers for investigative purposes.

Not having the authority to request this information may push employers to fire employees more quickly or push misconduct complaints to police to investigate, Glockner said.

Also on Wednesday, the House Judiciary Committee passed House Bill 2404, which would allow 18-year-olds charged with felonies to go through the juvenile justice system. The legislature previously approved a measure to move the juvenile age up from 17 to 18, but only for those charged with misdemeanors.

In addition, the committee approved House Bill 1063, which would eliminate the statute of limitations for child sex abuse cases. Both measures passed the committee with little opposition and now head to the House floor for further consideration.

Legislation can be found on the General Assembly’s website at ilga.gov