On April 9, Maryland legislators approved a bill banning employers from asking current or prospective employees for their passwords to social media sites. The bill, passed by both houses of the General Assembly, also prohibits employers from taking or threatening to take disciplinary action against individuals who refuse to disclose their passwords. The bill now goes to Governor Martin O’Malley for consideration. If the governor signs the bill into law, Maryland would be the first state to ban the practice, although legislators in several other states, including California, Illinois, Minnesota, New Jersey, and Washington, have introduced similar legislation or announced their intention to do so. In addition, two U. S. Representatives are drafting a bill that would address the issue on the federal level, and two Senators called for the Equal Employment Opportunity Commission and the Department of Justice to investigate whether the practice violates any federal laws already in existence.
Recently, the issue of employer requests for social media passwords has become a contested topic, after news surfaced that the Maryland Department of Corrections asked a job applicant for his account information for a social media site. Some groups, such as the American Civil Liberties Union, decried the practice as an invasion of privacy, while other groups noted that information on social media pages may be helpful in making employment decisions. Facebook, one of the most widely-used social media sites, strongly condemned the practice, vowing to make it a violation of Facebook’s Statement of Rights or Responsibilities to share or solicit a Facebook password. Another concern for employers is that accessing the social media accounts of current or prospective employees may provide the employers with information that is irrelevant to employment decisions, such as an individual’s (real or perceived) disability or other protected characteristics. Possession of such information may make it more difficult for employers to defend against claims of employment discrimination. In addition, the Office of the General Counsel of the National Labor Relations Board has issued several guidance memoranda opining that in certain circumstances, employees’ social media postings about workplace issues may constitute protected, concerted activity under the National Labor Relations Act. To view Winston & Strawn’s briefings from August 2011, “NLRB Acting General Counsel Issues Report on Recent Decisions Involving Social Media Usage,” click here and from January 2012, “NLRB Acting General Counsel Issues Second Report on Social Media” here.