Recently, Maine became the latest state to enact legislation restricting an employer’s access to employees’ and job applicants’ personal social media accounts. The new statute prohibits an employer from requiring, coercing or requesting an employee or applicant:
- to disclose the password or any other means for accessing a personal social media account;
- to provide access to a personal social media account in the presence of the employer;
- to disclose to the employer any personal social media account information;
- to add anyone to the employee’s or applicant’s list of contacts associated with a personal social media account; and
- to alter settings that affect a 3rd party’s ability to view the contents of a personal social media account.
Employers also are prohibited from (1) disciplining, penalizing or threatening to discipline an employee or (2) failing or refusing to hire an applicant in retaliation for the employee’s or applicant’s refusal to comply with a request that violates the new law.
The new statute also contains the following exceptions:
- It does not apply to information about the applicant or employee that is publicly available.
- It does not prohibit or restrict an employer from complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications that is established a federal or state law or self-regulatory organization (like the SEC);
- It does not prohibit or restrict an employer from requiring an employee to disclose personal social media account information that the employer reasonably believes to be relevant to an investigation of allegations of employee misconduct or a workplace-related violation of applicable rules, as long as the information disclosed is accessed and used solely to the extent necessary for purposes of the investigation or related proceeding.
- It does not prohibit employer from implementing and enforcing workplace policies regarding use of the employer’s electronic equipment, including requirement that employee disclose to employee user name and/or password necessary to access employer-issued electronic devices like cell phones and computers, or to access employer-provided software or e-mail accounts.
An employer violating the new law is subject to a fine imposed by the Department of Labor of not less than $100 for first violation, not less than $250 for 2nd violation and not less than $500 for each subsequent violation.
While Maine’s statute mirrors aspects of similar statutes enacted in other states, there also are important differences, such as the apparent absence of an employee’s right to bring a private cause of action. Employers that have employees in multiple states would be wise to take these differences into account when considering whether a one-size-fits-all social media policy is appropriate for them.