October 1, 2012
By: Michael J. Neary
On May 2, 2012, Maryland became the first state to prohibit employers from requesting login information from employees or applicants for personal electronic accounts, e.g. personal e-mail or social media accounts. The new law became effective on October 1, 2012.
Under the law, employers engaged in business in Maryland may not:
- Request or require that an employee or applicant disclose user names, passwords, or other means for accessing personal accounts or services through an electronic communications device.
- Discharge, discipline or otherwise penalize an employee, or threaten to do so, for the employee's refusal to disclose information allowing access to their personal information.
- Fail or refuse to hire an applicant as a result of the applicant's unwillingness to disclose protected login information.
The law clarifies that employers can still investigate employees based on the receipt of information about:
- An employee’s use of an Internet site or web-based account for business purposes, if the investigation is for the purpose of ensuring compliance with securities or financial law, or regulatory requirements.
- An employee’s unauthorized downloading of an employer's proprietary information or financial data to an Internet site or web-based account.
The law also expressly makes clear that an employer can still require employees to disclose login information for non-personal accounts and services that provide access to the employer's own computer or information systems.
In an interesting twist, the law prohibits employees from downloading employer proprietary information or financial data to personal accounts or websites without authorization.
What the Restrictions on Social Media Account Access Mean for Employers
Employers that do business in Maryland should review their employment and hiring policies to ensure that employees and applicants are not asked to provide usernames and passwords for their personal electronic accounts. Maryland employers also should train managers and employees with hiring responsibilities to ensure that they are not seeking protected information from employees or applicants. The law does not contain a private right of action. However, employees that suffer a termination allegedly in violation of the law may have a claim for wrongful discharge under Maryland common law.
Many other states are considering similar legislation and Congress is also looking into it. Given the heightened public scrutiny of this issue, all employers should carefully examine whether seeking this type of information from employees and applicants is a wise business decision.
Michael J. Neary is an employment and litigation attorney at Lerch, Early & Brewer in Bethesda, Maryland who helps businesses avoid litigation by counseling employers on compliance with federal employment statutes and regulations. For more information on social media policies in the workplace, contact Mike at (301) 657-0730 or mjneary@lerchearly.com.
