As the old Bob Dylan song goes, “the times they are a-changin’.” While I suspect his message may have been intended for a more meaningful topic than social media employee privacy laws, his words do ring true. When Maryland passed the first such statute in 2012, social media privacy was considered an outlier issue. Now, however, it is nearing the majority approach when it comes to state law prohibiting employers from demanding employees and job applicants to provide unfettered access to their personal social media accounts.
In July of this year, we discussed Virginia’s new social media privacy law. We could have also written about the Connecticut law that goes into effect October 1, 2015, or the Maine law that goes into effect October 15, 2015. Each state prohibits employers from requiring, requesting or coercing employees and job applicants to disclose their personal social media account passwords or other account information. Also, each state includes an anti-retaliation provision where the protected activity is the refusal to provide password and account information as precluded by each state’s new law. These laws are not too dissimilar from those of other the 20 states that enacted legislation or authorized study of the issue since 2012. (See below for hyperlinks to the other state statutes on this issue). While there are subtle differences in scope and definition of protected activity, as well as penalties for violations, the trends in this newly evolving area of law are abundantly clear. While it is still okay to look at publicly available information about applicants and employees, employers should refrain from asking for protected information and from retaliating against someone who refuses to provide the information.
Proactive employers should strongly consider updating their policies and practices concerning requests for and access to employees’ social media platforms. It is also worthwhile to consider the propriety of training for managers and other employees who are involved in the recruiting, interviewing and hiring processes.
Here are hyperlinks to the other state statutes regarding social media employee privacy: