In a sign of the growing trend of states enacting statutes protecting employee privacy, Maine became the latest state to prohibit employers from requiring employees and job applicants to provide passwords to their personal Facebook and other social media accounts. Since 2012, nearly half of the states have passed such laws. Indeed, since February alone, when we discussed this issue in our employment privacy webinar, three states enacted social media privacy laws, including Connecticut. We briefly outline Maine’s new law below.
Under the Maine law, both private and public employers are not only prohibited from requiring, requesting or coercing employees and job applications from disclosing their personal social media account passwords or other account information, but they also cannot discharge or penalize an employee or decline to hire an applicant who refuses to: access their social media accounts in the employer’s presence, add the employer or anyone else to their contact list at the employer’s request, or alter privacy settings so that the employer can view the contents of their social media accounts. Employers are subject to a minimum $100 fine for the first violation, $200 for the second violation, and $500 for each subsequent violation.
That said, the law does provide employers with some protections. For instance, the statute does not prohibit employers from requiring social media account information in relation to an investigation into an employee’s misconduct or a workplace-related violation. The statute also does not limit an employer’s right to maintain lawful workplace policies governing the use of employer-owned electronic equipment and networks. Thus, employees may be required to provide their username, password and other information necessary for the employer to access its devices and networks.
While Maine employers should particularly take heed of this statute and make sure their policies and practices are compliant by October 15th, all employers should educate their interviewers and managers against requiring applicants and employees to disclose social media account information. With the continued growth of social media, it is highly likely that additional states will enact similar laws protecting employee and applicant privacy.