Virginia is the latest state to enact legislation banning the request of social media information from current or prospective employees.
This is not a new practice in the United States, but what makes this specific law different is that it applied to both private and public employers.
The law was passed in order to help protect prospective and current employee’s privacy as well as to ensure employers do not utilize specifically protected civil liberties against them in the workplace. What this law will not cover, is publically available information on the internet. For instance, if an applicant’s Facebook Profile is not set to private, any information that is readily available may be viewed.
What is unknown at this time is the impact this will have on law enforcement background investigations in Virginia. It is common practice to have peace officer applicants complete a form outlining their social media accounts and passwords to help “weed out” candidates that are racist or inappropriate. There is writing in Virginia Code 40.1-28.7:5 that says this will not prevent access to social media accounts that are currently mandated by law.
Dusty Lefdal, a POST Certified Background Investigator in California says, “Usually these laws are not meant for Public Employers, specifically in Law Enforcement because the public generally wants to know more about their peace officers prior to hiring them. But, in my opinion, it is just a matter of time before legislation is written to take this option of the table for peace officer candidates.” He stated that it appears peace officer background investigations are not protected under this new Virginia Law, but that case law may be tested on this in the near future.
In a nutshell, any employer in Virginia is now banned from requesting social media account information from any employee or applicant. It should be noted that this law does not allow for a new Cause of Action to be brought forward but that use of banned information may be more easily brought forward in a wrongful termination or other likewise lawsuit.
Employer’s Investigative Services is a nationwide provider of background checks and drug testing. Give them a call at 866-350-5638 for a free consultation to ensure you are staying compliant.