States Begin to Outlaw Employer Access to Social Media Profiles

This month, Maryland became the first state to pass a law prohibiting employers from requiring potential hires and current employees to disclose access to their personal email or social media accounts; this law is in response to the recent trend by some employers of asking job applicants to provide access to the employer to the applicant’s email account or Facebook or other social media account.

In addition to prohibiting employers’ access to employee’s social media accounts, the new law also prohibits employers from refusing to hire any prospective employee, or from disciplining or terminating any current employee, based on their refusal to provide such access. However, the law also protects employers by prohibiting employees from uploading the employer’s proprietary information or financial data to any personal account, and permits employers to investigate any such breach of the prohibition (although the law is silent on the permissible methods of such investigation).

Maryland is not likely to be the only state with such legislation. California, Illinois, and New Jersey are also considering bills like the one passed in Maryland. In those states, legislators are further concerned about employers who ask prospective hires to “voluntarily” provide access to their social media profiles. In the proposed California bill, employers are prohibited from asking and employees are prohibited from voluntarily providing access to or sharing information from their personal social media accounts. In the words of one California Senator, “it is completely unacceptable for an employer to invade someone’s personal social media accounts. Not only is it entirely unnecessary, it is an invasion of privacy and unrelated to one’s work performance or abilities.”

As I cautioned in my previous article, if you are an employer considering requiring prospective or current employees provide access to their personal social media accounts, or already have such a policy in place, given the trend by state governments to prohibit the practice, and for the liability issues I covered in my previous article, you should look towards ending the practice as soon as possible.

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