It is amazing how fast a legislative body can act when it wants
to. Just last week, Governor Martin O'Malley of Maryland signed
the country's first law restricting employers' ability
to demand social media account information from applicants and
employees. Maryland was the first to propose this type of law, and
is now the first to enact it.
The Maryland law takes effect on October 12,
2012, and contains the following highlights:
There is no "small employer" exemption, and covers
all employers, as well as "an agent, a representative, and a
designee of the employer." Employers cannot avoid liability by
contracting out to have someone else do what the law
An employer is prohibited from requesting or requiring an
applicant or employee to "disclose any user name, password, or
other means for accessing a personal account or service
through" a computer, telephone, PDA, or similar device. An
employer may, however, require the disclosure of a user name and
password to access non-personal accounts that "provide access
to the employer's internal computer or information
systems." (The difference being personal accounts versus work
An employer cannot terminate, discipline or penalize an
employee (or refuse to hire in the case of an applicant) based on a
refusal to disclose any prohibited information (which the employer
is now no longer able to ask for in the first instance).
The new law also contains a prohibition for employees:
An employee "may not download unauthorized employer
proprietary information or financial data to an employee's
personal web site, an Internet web site, a web-based account, or a
Employer Take Away: What should you as an
employer take away from this development?
The race is heating up to see which jurisdiction will follow
Maryland in enacting a similar law. Illinois and California have
measures that have recently passed through legislative committees,
while bills are still being considered in New York and on the
federal level. Be cautious about how you go about obtaining social
media-based information to reach decisions about your applicants
and employees, and stay tuned for more developments in this
As our readers know, federal and state departments of labor have intensified their scrutiny of independent contractor arrangements and are coordinating with the federal and state taxing authorities when misclassifications are found.
Courts often conclude that absent appropriate disclaimer language and statements in employee handbooks are "promises" to employees, binding employers to abide by these promises in their dealings with employees.
Employers sometimes rely on equitable arguments, such as "unclean hands" (which asserts that it would not be fair to hold an employer liable when the employee’s actions caused or contributed to his own injury or damages).