Maryland Passes First Law Prohibiting Employers from Asking Employees and Job Applicants for Social Media Passwords

The state of Maryland has passed the first law in the nation to prohibit employers from asking employees and job applicants for social media passwords. Both Houses of the Maryland General Assembly have approved identical versions of a social media privacy protection bill – Senate Bill 433 (SB 433)/House Bill 964 (HB 964) – that prohibits employers from requesting or requiring employees or job applicants to disclose their user names or passwords to social media websites such as Facebook and other personal Internet sites and Web-based accounts as a condition of employment. (Update: Maryland Governor Officially Signs Facebook Password Law).

SB 433/HB 964, which is expected to be signed by Maryland Governor Martin O’Malley and will take effect October 1, 2012, states that “an employer may not request or require that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications device.” In addition, an employer may not:

  • Discharge, discipline, or otherwise penalize or threaten to discharge, discipline , or otherwise penalize an employee for an employee’s refusal to disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications device; or
  • Fail or refuse to hire any applicant as a result of the applicant’s refusal to disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications device.

Other states are considering passing similar laws to the one Maryland has passed. An Illinois bill, HB 3782, would bar employers from asking job applicants for social media passwords during background checks. The full text of Senate Bill 433 (SB 433) is available at: http://mlis.state.md.us/2012rs/bills/sb/sb0433t.pdf. The full text of House Bill 964 (HB 964) is available at: http://mlis.state.md.us/2012rs/bills/hb/hb0964t.pdf.

As reported previously on the ESR News blog ‘Facebook Warns Employers Asking Job Applicants for Social Media Passwords may Expose Businesses to Legal Liability,’ online social media giant Facebook issued a warning to employers in a recent blog posted on the company website – ‘Protecting Your Passwords and Your Privacy’ – in response to an increase in reports of employers seeking to gain “inappropriate access” to social network profiles of job applicants.

In a blog dated March 23, 2012, Facebook’s Chief Privacy Officer wrote that the practice of asking job applicants for their social media passwords “undermines the privacy expectations and the security of both the user and the user’s friends” and could potentially expose businesses to “unanticipated legal liability.” The blog is available at: http://www.facebook.com/notes/facebook-and-privacy/protecting-your-passwords-and-your-privacy/326598317390057.

Employers should approach so-called “social media background checks” that search the Internet for the online activities of job applicants with extreme caution, according to Attorney Les Rosen, founder and CEO of San Francisco-area background check firm Employment Screening Resources (ESR).

“Employers have discovered a treasure trove of information about job applicants on social media sites such as Facebook and Twitter with social media background checks,” says Rosen, author of ‘The Safe Hiring Manual,’ a comprehensive guide to employment screening. “However, using the Internet for screening job applicants can land employers in legal trouble since information found online is not always risk free or even true.”

Rosen says employers in the Internet age are in a “Catch 22” situation when it comes to social media background checks. “Failure to utilize social media resources can arguably be the basis of a negligent hiring claim if an unfit person was hired for a position where a search online may have raised a red flag. Conversely, employers face numerous pitfalls that can include that include privacy, discrimination, and accuracy issues.”

To help employers understand the legal dangers of social media background checks, Rosen has authored a white paper, ‘Managing the Risks of Using the Internet for Employment Screening Background Checks,’ that was recently updated in March 2012. The complimentary white paper is available at http://www.esrcheck.com/Download/.

For more information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and a nationwide background screening firm accredited by The National Association of Professional Background Screeners (NAPBS®) – at http://www.ESRcheck.com or call 415.898.0044 or Toll Free 888.999.0044.

Sources:
http://mlis.state.md.us/
http://mlis.state.md.us/2012rs/billfile/HB0964.htm
http://mlis.state.md.us/2012rs/bills/hb/hb0964t.pdf
http://mlis.state.md.us/2012rs/billfile/SB0433.htm
http://mlis.state.md.us/2012rs/bills/sb/sb0433t.pdf

About Employment Screening Resources (ESR):
Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM – provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percentage of screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com/ or call 415.898.0044 or 888.999.4474.

About ESR News:
The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com.