Earlier this month, Maine’s highest court, the Law Court, held that Governor LePage’s veto attempts came too late—meaning that 65 laws which he had not taken timely action on are law. Included in these 65 laws is L.D. 921, which (as a result of the Governor’s failure to act) became law on July 12, 2015.
L.D. 921 has two components: 1) it provides damages for employees who have been denied rights under Maine’s Employment Leave for Victims of Violence; and 2) it enacts Maine’s Employee Social Media Privacy law.
26 M.R.S.A. § 850 is Maine’s Employment Leave for Victims of Violence law. While the law has been in effect since 1999, there were no damages available to the affected employee. Previously, the Department of Labor could assess a civil penalty of up to $200 for each violation (if the employee notifies the DOL within 6 months of the occurrence), however there previously was no damages available for the employees who’s rights were violated. The new penalties portion of the statute provides that the DOL may assess a fine of up to $1,000 for each occurrence and the employer will be required to pay “liquidated damages to the affected individual in an amount equal to 3 times the amount of total assessed fines.” Additionally, if an individual is terminated for attempting to use statutorily protected time as a result of domestic violence, the former employee could receive either the liquidated damages previously noted or re-employment with payment of back wages.
Maine’s new Employee Social Media Privacy law, 26 M.R.S.A. § 615, makes it the 22nd state to enact a social media privacy law applicable to employers. The law prohibits an employer from:
- Requiring, requesting, or coercing employees or applicants to provide passwords for accessing personal social media accounts;
- Requiring, requesting, or coercing employees or applicants to access personal social media accounts in the presence of an employer or employer’s agent;
- Requiring or coercing an employee or applicant to disclose any personal social media account information;
- Requiring or causing an employee or applicant to add anyone to the employee or applicant’s lists of contacts associated with the personal social media account;
- Requiring, requesting, or causing an employee or applicant to alter settings to allow a third party to view contents of a personal social media account;
- Discharging, diciplinging, or otherwise penalizing or threatening to discharge or discipline an employee for his or her refusal to disclose any information protected by the statute or refusal to add any contacts or change any settings; and
- Failing or refusing to hire an applicant as a result of his or her refusal to provide any information protected by the statute, add anyone to the applicant’s contacts, or alter any settings.
The statute does include a couple of exceptions, including protecting employers from publicly available information and the banking industry’s duty to screen or supervise. Most applicable to employers, however, is the investigation exception which provides:
The subchapter does not prohibit or restrict an employer from requiring an employee to disclose personal social media account information that the employer reasonably believes to be relevant to an investigation of allegations of employee misconduct or a workplace-related violation of applicable laws, rules or regulations if requiring the disclosure is not otherwise prohibited by law, as long as the information disclosed is access and used solely to the extent necessary for purposes of that investigation or a related proceeding.
The whole of the new law is available here. Accordingly, insofar as you are investigating an allegation of misconduct, this exception would appear to allow you to ask employees to see any social media postings that are relevant to the employer’s investigation of the matter.