Social media continues to gain attention in the employment law field. From recent NLRB advice memoranda to Congress considering new legislation, to every employer now being advised to at least have a “policy” on social media, the news keeps pouring in. (Read this article by Eric Yaverbaum on The Washington Post blog, or this one on Mashable, or the many other articles online.)
Now, Maryland has become the first state to ban employers from asking for the social media site passwords of employees and applicants. Relying on privacy concerns, the Maryland General Assembly passed legislation prohibiting employers from requesting or requiring usernames or passwords to personal online social media sites. The legislation also bans an employer from taking disciplinary action, or threatening such action, if an employee or applicant refuses to disclose such information.
It is generally considered a bad idea for employers to conduct social media site searches in making hiring decisions. Some information gained through such searches may be useful, but other information that may be learned inadvertently could lead to strong legal challenges if the applicant is not hired. For example, such a search may reveal genetic information, or particular religious affiliation, or whistleblowing activity at a prior employer, all of which would be protected characteristics on which the employer could not rely in making a hiring decision.
Similar legislation is pending in Washington state, New Jersey and California, and several federal lawmakers say they are working on similar legislation for consideration at the federal level.