States Take the Lead on Legislation to Bar Employer Requests for Social Media Passwords

by Barbara Yuill

Congress often lags behind more nimble state legislatures when it comes to the quick passage of new law on up-and-coming issues. Social media law, it turns out, is no exception. Take the recent headline-making issue of employers demanding social media passwords and other passwords from employees or prospective employees. In a tight economy, are workers in a position to say no?

Facebook Chief Privacy Officer (Policy) Erin Egan spoke out recently against the practice in an online note, saying that “In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information. … That's why we've made it a violation of Facebook's Statement of Rights and Responsibilities to share or solicit a Facebook password.”

Egan also noted that employers who look at the social media pages of employees or prospective employees potentially expose themselves to “unanticipated legal liability.”

Some employment attorneys, meanwhile, have told Bloomberg BNA that they are at a loss to point to a single case of an employer demanding a social media password from a worker.

In any case, federal lawmakers have just started introducing legislation to restrict the right of employers to demand passwords, including social media passwords, from employees or prospective employers. But the states were first out of the staring gate, and Maryland--the clear front-runner--enacted such a law May 2. The Maryland law, which will take effect Oct. 1, regulates employer demands for employees or prospective employees to disclose their “user name, password, or other means for accessing a personal account or service through an electronic communications device.”

Not to be left behind, similar laws are pending in nearly half a dozen other states.

Bills in California and Illinois have passed one chamber, and introduced bills are pending in Delaware, Massachusetts, Michigan, Minnesota, Missouri, New York, and South Carolina.

In Washington, Democratic senators May 9 introduced legislation (S. 3074) that would make it unlawful for employers to “compel or coerce” employees or job applicants into providing passwords or access to their private, online accounts such as social media websites or email accounts. The Password Protection Act was introduced by Sens. Richard Blumenthal (D-Conn.), Charles Schumer (D-N.Y.), Ron Wyden (D-Ore.), Jeanne Shaheen (D-N.H.), and Amy Klobuchar (D-Minn.).

Rep. Martin Heinrich (D-N.M.) and Ed Perlmutter (D-Colo.) May 9 introduced identical companion legislation (H.R. 5684) to the Senate bill, and two House Democrats introduced similar legislation (H.R. 5050) in April.

If the states continue to move faster than Congress, it could open the door to a patchwork of varying state social media employment statutes, and a host of compliance issues for businesses.