It is amazing how fast a legislative body can act when it wants to. Just last week, Governor Martin O’Malley of Maryland signed the country’s first law restricting employers’ ability to demand social media account information from applicants and employees. Maryland was the first to propose this type of law, and is now the first to enact it.
The Maryland law takes effect on October 12, 2012, and contains the following highlights:
- There is no “small employer” exemption, and covers all employers, as well as “an agent, a representative, and a designee of the employer.” Employers cannot avoid liability by contracting out to have someone else do what the law prohibits.
- An employer is prohibited from requesting or requiring an applicant or employee to “disclose any user name, password, or other means for accessing a personal account or service through” a computer, telephone, PDA, or similar device. An employer may, however, require the disclosure of a user name and password to access non-personal accounts that “provide access to the employer’s internal computer or information systems.” (The difference being personal accounts versus work accounts.)
- An employer cannot terminate, discipline or penalize an employee (or refuse to hire in the case of an applicant) based on a refusal to disclose any prohibited information (which the employer is now no longer able to ask for in the first instance).
The new law also contains a prohibition for employees: An employee “may not download unauthorized employer proprietary information or financial data to an employee’s personal web site, an Internet web site, a web-based account, or a similar account.”
Employer Take Away: What should you as an employer take away from this development?
The race is heating up to see which jurisdiction will follow Maryland in enacting a similar law. Illinois and California have measures that have recently passed through legislative committees, while bills are still being considered in New York and on the federal level. Be cautious about how you go about obtaining social media-based information to reach decisions about your applicants and employees, and stay tuned for more developments in this area.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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