Much ink has been spilled on recent social media trends arising out of lawsuits filed in court and complaints with various administrative agencies. Here comes the legislative branch with a very interesting first proposed legislation of its kind.
Late last week, the Maryland State Senate introduced a bill (S.B. 971) that would expressly prohibit employers from requiring current employees and applicants to disclose their “user name or password for any Internet site or web-based account”, unless such disclosure is required for access to the employer’s own internal computer or systems. In addition, the bill would make it unlawful to discharge, discipline, or otherwise penalize an employee or applicant (or threaten to do so) for refusing to disclose such information to the employer. While many courts continue to allow broad and wide-reaching discovery of social media user information and content in the course of employment litigation, Maryland appears to stand ready to legislatively curtail employer access to information deemed private in the first instance.
There are some things that the proposed legislation does not appear to do. First, while the bill prohibits an employer from “requiring” disclosure of user names and passwords, it does not proscribe obtaining such information if voluntarily given or disclosed by an employee or applicant, or if gained by means other than a requirement (provided such means are not fraudulent). Second, the bill does not appear to prohibit the use of any social media content by employers, provided that the information was not obtained through a requirement that an individual’s user name and password be provided.
Still, the proposed law has its points of concern. For one, there is no type of business need exception to the bill’s prohibitions, which might be problematic depending on the particular circumstances of a position held or sought. In addition, a troubling irony exists whereby an employer may be allowed to “require” that a former employee provide user information in the course of a lawsuit with that former employee, yet now be prohibited from doing the same thing in a lawsuit involving a current employee.
We will continue to watch the progress of this Maryland bill, as well as any similar developments in other jurisdictions.
Employer Take Away: What should you as an employer take away from this development? As we keep saying, developments are changing rapidly, and almost daily, at the intersection of social media and employment law. Many are not on the federal, or national, level, and will instead continue to take place on the state and local levels. For that reason, you should “know your jurisdiction” and understand (with the help of counsel when necessary) how the rules of social media use may apply to your company in each of the locales in which your company does business. Moreover, by remaining aware of developments like Maryland’s proposed law in your company’s jurisdiction, you may have an opportunity to comment or object to your local legislators on these issues before they reach the books in final form.