Maryland recently became the first state to ban employers from requiring prospective employees to let them access their social media accounts. The law was passed in response to protests after the state demanded corrections officers’ social media passwords to search for gang affiliations.
Even in states where reviewing prospects’ Facebook accounts remains legal, employers may want to think twice before incorporating the practice into their hiring procedures. Employers who require access to private pages risk losing qualified applicants who have nothing to hide but object to the intrusiveness.
There are also legal risks: for instance, a discrimination plaintiff needs to show that the employer knew he was a member of a protected class. A potential employer who otherwise would not have known the job applicant’s religion or race is likely to inadvertently find out while scouring social media. An employer who retains applicants’ or employees’ login information could also be subject to a lawsuit if the information is leaked or used by someone else in the office for improper purposes.
Nonetheless, increasing numbers of employers are requiring applicants to turn over passwords, as the Associated Press recently reported. Even more employers review employees’ public postings (which the Maryland law does not prohibit).
The Maryland law prohibits employers from requiring or asking employees to provide access to their personal accounts but does not prohibit employers from monitoring employees’ activities on office computers, and allows employers to request employees’ internal passwords. The law also clarifies that it does not prohibit employers from investigating to ensure employees comply with financial regulations when using sites for business purposes or from investigating employees’ use of the employers’ proprietary information. Similar bills are reportedly pending in California, Illinois, Minnesota, New Jersey, and Washington.