Employers have increasingly compelled employees and potential employees to allow access to their social media accounts in making personnel decisions. There have been a number of lawsuits based on privacy protections, but now many states are considering statutory protections to restrict employers from compelling access to and use of social media.
Maryland has now become the first state to pass a law that bars employers from requiring employees or job applicants to provide access to their personal social media and other internet based accounts. The new Maryland law, called User Name and Password Privacy and Exclusions Law, will take effect on October 1, 2012.
Several other states, including New York, California, Illinois, New Jersey and Washington, have similar legislation pending. At a federal level, lawmakers introduced the Social Networking Online Protection Act on April 27, 2012. This legislation would prohibit employers and educational institutions from requiring employees or job applicants to provide access to online content whether by providing a password or username. Violations of the law would subject an employer to a civil penalty up to $10,000.
Under the new Maryland law, employers are prohibited from asking that job applicants or employees disclose "any means for accessing,” such as a user name or password, for “any personal account or service” accessed through “computers, telephones, personal digital assistants, and other similar devices.” The law extends beyond Facebook and other social media accounts to include personal e-mail accounts, personal online banking accounts or other online service accounts.
The new Maryland law expressly permits the employer to require that employees disclose log in credentials for “accessing non personal accounts or services that provide access to the employer’s internal computer or information systems.” Employers in Maryland will not be prevented from gaining access to information stored on the employer’s own information systems. Also, if an employer receives information that an employee is using a personal online account for business purposes, the law “does not prevent” the employer from conducting an investigation to ensure that the employee is complying with “securities or financial law or regulatory requirements.” Or, if the employer receives information that an employee has downloaded the employer’s proprietary information, the law does not prevent the employer from conducting an investigation.
Maryland may be the first, but certainly not the last, to pass statutory restrictions on using social media and Internet sites in personnel decisions. It is virtually certain that there will be increased scrutiny over employer’s policies and practices regarding employees use of social media from federal and state regulators, legislators and the courts. Prudent employers will monitor these developments and continue to modify their employment practices and social media policies to comply with developing law in this area.