Ohio joins the fray on employers asking for social media passwords

It was only a matter of time before Ohio joined the list of states to introduce legislation that would prohibit employers from asking for social media passwords. Senate Bill 351, introduced late last week, would amend Ohio’s employment discrimination statue to make it an “unlawful discriminatory practice” for employers to do any of the following:

• Ask or require an applicant or employee to disclose usernames or passwords associated with, or otherwise provide access to, a private electronic account of the applicant or employee;
• Fail or refuse to hire an applicant for employment, or discharge, discipline, threaten to discharge, discipline, or otherwise penalize an employee, if the applicant or employee refuses.

The bill defines “private electronic account” as “a collection of electronically stored private information regarding an individual, including such collections stored on social media internet web sites, in electronic mail, and on electronic devices.” It then broadly defines “social media internet web site” as “an internet web site that allows individuals to do all of the following”:

1. Construct a public or semipublic profile within a bounded system created by the service;
2. Create a list of other users with whom the individual shares a connection within the system; or
3. View and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

The bill does not prohibit an employer from monitoring the electronic accounts of employees or applicants on the employer’s own Email or Internet system.

As far an enforcement, the bill would permit aggrieved individuals to file a charge of discrimination with the Ohio Civil Rights Commission, or a private cause of action in court. It also allows the OCRC to levy fines of up to $1,000 for the first violation and up to $2,000 for each subsequent violation.

I’ve said it before and I’ll say it again, this is not a problem that needs fixing. Companies simply aren’t engaging in the type of conduct this bill seeks to legislate. I am troubled that the path this legislature chose is to seek to make this an unlawful discriminatory practice, on the same plane as race, sex, age, and disability discrimination. Moreover, there are no exceptions for industries that might have a legitimate reason to know what applicants or employees are doing on social sites (schools, police departments, financial services). The lack of any exceptions is a glaring omission from this legislation.

This bill is in its infancy. I will continue to monitor its status and update you with any movement in Columbus.