Author: David B. Weisenfeld, XpertHR Legal Editor

Effective October 1, 2012, Maryland employers may not require job applicants or employees to disclose passwords to their personal social media accounts. In addition, employers are prohibited from penalizing those who fail to reveal such information.

California and Illinois have already followed Maryland's lead by passing their own password privacy protection laws and host of other states have introduced similar legislation. As a result, this trend is clearly on the rise.

Baltimore employment attorney Randi Klein Hyatt, who practices with Kollman & Saucier, shares her insights not only on the Maryland law but also discusses California's new measure as well as the likelihood of passage for federal legislation in this area.

She notes that these laws are a response to some employers asking job applicants for access to their Facebook accounts to learn more about the applicants. "Maryland decided to lead the charge up the hill… reacting to that kind of practice," says Hyatt.

Interestingly, the Maryland law does not provide any civil penalties or fines for violation of the statute. Hyatt points out, though, that employers may still be subject to common law claims for wrongful discharge or failure to hire.

Meanwhile, Hyatt describes California's law as "actually more employer friendly than Maryland's" in some respects. For instance, Hyatt says, "An employer in California can say we need you to get on your Facebook page and print out x, y and z so we can have it and collect it [if it may be relevant to allegations of employee misconduct]." In contrast, she notes the Maryland statute is silent on that issue.

Despite this growing trend, Hyatt says, "It's not realistic to tell employers they should not Google applicants" as part of the hiring process. The problems arise, she asserts, when employers go too far.

XpertHR podcast (MP3 format, 15.6MB)

Baltimore employment attorney Randi Klein Hyatt breaks down Maryland's first-of-its kind law barring employers from asking for social media passwords and how other states are following suit.

Additional Resources

California Senate Passes Social Media Privacy Bill

New Illinois Law Addresses Privacy Rights of Applicants and Employees With Regard to Social Networking Websites

Legislatures Aim to Protect Social Media Privacy of Employees and Applicants

Social Media Password Privacy Protection Legislation - Chart