Written By: Charles L. Appleby, IV Esq.
Collins & Lacy, P.C.
Columbia, South Carolina
Maryland is about to become the first state in the nation to ban employers from requesting access to the social media accounts of employees and job applicants. New legislation that passed both houses on April 7 and only requires Governor Martin O’Malley’s signature prohibits employers in both the private and public sectors from requiring or seeking user names, passwords or any other means of accessing personal Internet sites such as Facebook as a condition of employment. See, S.B. 433 and H.B. 964.
The American Civil Liberties Union (ACLU) of Maryland was a big supporter of the legislation. Maryland ACLU legislative director Melissa Goemann stated the prohibition “is a really positive development because the technology for social media is expanding every year, and we think this sets a really good precedent for limiting how much your privacy can be exposed when you use these mediums.” The Maryland Chamber of Commerce, on the other hand, opposed the prohibition because the bills did not acknowledge there could be legitimate issues for some employers to want to review applicants’ or workers’ social media messages.
While employers may not seek usernames and passwords from employees’ personal Internet sites, the bills do allow employers to require employees to provide passwords and login information for non-personal accounts that are part of the employer’s own systems, such as company e-mail accounts. In addition, the bills prohibit employees from downloading “unauthorized employer proprietary information or financial data” to personal accounts or to websites, and it allows employers to investigate these activities to ensure “compliance with applicable securities or financial law or regulatory requirements.”
While Maryland is the first to pass this type of legislation, other states will surely follow. Michigan (H.B. 5523), Minnesota (H.F. 2963), Missouri (H.B. 2060), New York (S.B. 6938), South Carolina (H.B. 5105), and Washington (S.B. 6637) all have similar bills introduced. In addition, it is rumored lawmakers in Congress are working on legislation that would ban the practice nationally. United States Senators Richard Blumenthal, D-Conn., and Charles E. Schumer, D-N.Y. even called on the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice to launch a federal investigation into the emerging trend among employers. Schumer said in a statement: “Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?”
Will Congress ban the practice nationally or will your state enact its own legislation? Stay tuned.