Social Media In The Workplace: Maryland Closes The Door On Employer Access To Employee And Applicant Social Media Sites
Maryland has become the first state to pass a bill banning employers from asking employees or applicants for their social media passwords and login information. The User Name and Password Privacy Protection Act prohibits employers from taking or threatening adverse action based upon an employee's or applicant's refusal to provide a user name or password to a "personal account" accessed through a "computer, telephone, personal digital assistants, and other similar devices." Commentators expect Maryland's Governor to sign the bill into law in May and it will take effect on October 1, 2012.
Where Did The Bill Come From?
The bill seems to have been born out of a media circus and a lawsuit filed by the American Civil Liberties Union. In 2011, the Maryland Department of Corrections asked an applicant - as part of its normal hiring process - to provide his Facebook user name and password so the Department could check whether he had any gang connections. The applicant agreed, but later claimed he was "mortified" by his potential employer's willingness to violate his privacy without recourse. The applicant later contacted the ACLU (and other civil liberties groups) who lobbied the Maryland legislature to pass the bill.
Key Features of The Bill
The Act generally prohibits employers from requiring (or even asking) that employees or applicants disclose their user names or passwords for "any personal account or service" that can be accessed through a computer, smartphone or other device. In other words, the law extends beyond social media sites and includes personal e-mail accounts, personal banking, and other personal online service accounts. The law also contains several implicit and explicit exceptions, including an exception that allows employers to ensure that employees comply with "securities or financial law, or regulatory requirements."
Opponents of the Act argue that it potentially limits an employer's sources of information when investigating claims of discrimination, harassment, bullying, or defamation against a customer. It is not entirely clear whether the Act would prohibit an employer from accessing social media sites during an internal investigation, and we won't know the answer until a test case makes its way through the Maryland courts. The Act also prohibits an employer from using social media sites to vet a potential hire - at least to the extent that information is contained on password protected websites.
More Laws To Come?
Maryland may be the first state to pass this type of law, but it might not be the last. Currently, similar bills are pending in California, Illinois, Minnesota, New York, and Washington. Moreover, U.S. Senator Richard Blumenthal (D-CT) has stated his plan to introduce similar federal legislation.
Stay tuned for more updates on this and other emerging issues in social media.