We’ve been following the issue of employers asking applicants and employees for access to their social media accounts. Despite limited data of how widespread this practice is, the issue has attracted national attention due in part to a recent AP story and activism by civil liberties groups.

Maryland moved significantly closer to becoming the first state to ban employers from asking applicants or employees for access to their social media accounts when its General Assembly passed a pair of bills—S.B. 433 and H.B. 964—over the weekend. The introduction of the legislation was driven in part by the account of a state Department of Corrections officer, who alleged that he was forced to give his interviewer his Facebook account information during his recertification interview.

If signed by Governor O’Malley, the law, which is effective October 1, 2012, would make it unlawful for an employer to “discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize” an employee or applicant for refusing to disclose their usernames or passwords for social media sites. The law also makes it unlawful for an employer to refuse to hire an applicant who refused to disclose the same information.

We will continue to track this legislation and update you if it is signed into law. In the meantime, employers should be mindful of current and pending federal legislation that could create risks if they ask applicants for access to their social media sites.

 

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Photo of Justin F. Keith Justin F. Keith

Justin helps unionized businesses maintain successful labor relations and helps non-union companies maintain direct relationships with their employees through education, training, and proactive union awareness. His labor practice encompasses all aspects of labor relations, including unfair labor practices, representation proceedings before the National

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Justin helps unionized businesses maintain successful labor relations and helps non-union companies maintain direct relationships with their employees through education, training, and proactive union awareness. His labor practice encompasses all aspects of labor relations, including unfair labor practices, representation proceedings before the National Labor Relations Board and Courts of Appeal, contract negotiations, strikes and lockouts, grievances, and arbitrations. Justin also represents employers in all areas of employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union awareness strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual

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