Maryland would become the first state in the nation to prohibit employers from asking or requiring that prospective or current employees provide a user name, password, or other means for accessing their personal online accounts under a bill passed by the Maryland General Assembly on Monday. The bill, now awaiting the signature of Governor Martin O’Malley, would also prohibit employers from discharging, disciplining, or in any way penalizing any individual who refuses to provide such personal access information.

The legislation stemmed from an employment policy of Maryland’s Department of Public Safety and Correctional Services (DPSCS) requiring prospective employees and those seeking recertification to provide their user names and passwords as part of the background investigation. DPSCS was attempting to screen for gang affiliations in an effort to combat gang violence in the State’s prisons, and discontinued the practice following employee complaints that it was an invasion of privacy. A corrections officer who was subjected to the screening reported the practice to the Maryland chapter of the ACLU, which raised privacy concerns with the state.

The legislation, which would take effect on October 1, 2012, is not an all-encompassing privacy regulation. For accounts tied to the employer’s computer or network system, an employer may request and require employees to disclose their user name, password, or other means of access. Employers may also investigate an employee’s use of a social media account to ensure compliance with securities or financial law or regulatory requirements. Likewise, an employer may investigate an employee’s use of a social media account if the employer suspects the employee has downloaded proprietary information onto his or her social media account without authorization.

Legislators in the states of Washington, New Jersey, and California have introduced or plan to introduce similar legislation. Privacy protections for employees have also gained bi-partisan support at the federal level. Rep. Ed Perlmutter (D-Colo.) and Rep. Patrick McHenry (R-N.C.) have announced that they are working on federal legislation to address the issue. Additionally, Sens. Charles Schumer (D-N.Y.) and Richard Blumenthal (D-Conn.) have called on the U.S. Equal Employment Opportunity Commission and Department of Justice to determine whether any privacy, fraud, or anti-discrimination laws are violated by employers that demand access to a job applicant’s social media accounts before making a hiring decision.

Attorneys in Ballard Spahr’s Labor and Employment Group routinely advise employers on the use of social media in the hiring process and the workplace. If you have questions, please contact Timothy F. McCormack at 410.528.5860 or mccormackt@ballardspahr.com, or the lawyer in the group with whom you work.

 


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