In this series, we will explore some of the ways states vary from one another in their employment laws.

As employers go through the hiring process, they might be tempted to analyze applicants’ social media accounts to ensure that there are no obvious red flags. Similarly, they might wish to review current employees’ accounts to investigate allegations of employee misconduct. While it is generally acceptable for employers to look through applicants’ or employees’ public social media profiles, employers generally should not be tempted to probe further by asking for applicants’ or employees’ passwords to private social media profiles, as doing so would violate 28 states’ laws.

While there is some variation from state to state, these 28 state laws are fairly uniform. They generally prohibit employers from doing the following:

• Requiring or requesting that employees or applicants disclose their social media usernames or passwords (Arkansas, Colorado and Nevada prohibit employers from even suggesting as much).

• Requiring or requesting that employees or applicants add the employer as a “friend” or other connection to provide the employer with profile access.

• Requiring or requesting that employees or applicants lower their privacy settings so the employer can view their profile.

• Requiring or requesting that employees or applicants access a personal account in the employer’s presence.

• Requiring or requesting that employees or applicants disclose the content of a private social media account to the employer.

• Using an employee or applicant’s username or password that the employer inadvertently discovered.

• Retaliating against the employee or applicant by refusing to hire them, terminating their employment, disciplining them, taking any other adverse employment action, or threatening to take any adverse employment action.

One caveat to these social media privacy laws is employee use on employer-issued devices and systems. Many of these states explicitly allow employers to monitor use of their electronic equipment. To the extent an employee uses private social media on an employer's computer or network, the employer may have the ability to monitor that use. However, employers should remain careful not to request private social media access or to attempt to monitor employee use outside of work and on private devices.