Author: Beth P. Zoller, XpertHR Legal Editor

From coast to coast and in the nation's capital, legislators continue to push for laws protecting the social media privacy of employees and applicants.

Such laws, which have already been passed in California, Illinois, Maryland and Michigan, effectively prevent employers from accessing private and personal social media websites and gaining information that could form the basis for an adverse employment action and lead to discrimination and harassment claims.

Similar legislation has recently been proposed in Maine, Texas, Washington State and on the federal level, reintroduced in the US Congress.

State Laws Proposed

In Washington State, lawmakers introduced Senate Bill 5211, which prohibits employers from directly or indirectly demanding that employees and applicants provide password or other related account information for the individual's social networking site as a condition of hiring or continued employment. +2013 Bill Text WA S.B. 5211; +2013 Bill Tracking WA S.B. 5211.

A social networking website is defined as an internet-based service that allows individuals to construct a public or semi-public profile within a system created by the service; create a list of other users with whom they share a connection within the system; and view and navigate their list of connections and those made by others within the system.

The proposed law does not prohibit employers from obtaining information about employees or applicants that is in the public domain or is legally obtained. The bill allows employees and applicants to bring civil actions for violations and obtain a $500 penalty, as well as actual damages and attorneys' fees and costs. Similar legislation was previously introduced, but it did not advance.

Texas lawmakers introduced legislation that would make it an unlawful employment practice for an employer to require or request that an employee or applicant disclose a user name, password or other means for accessing a personal email account or social networking account or profile through an electronic communication device. +2013 Bill Text TX H.B. 451; +2013 Bill Tracking TX H.B. 451; +2013 Bill Text TX H.B. 318; +2013 Bill Tracking TX H.B. 318; +2013 Bill Text TX S.B. 416; +2013 Bill Tracking TX S.B. 416.

The Texas bills define an electronic communication device as a computer, telephone, personal digital assistant or similar device that uses electronic signals to create, transmit and receive information. The proposed law does not prohibit employers from maintaining lawful workplace policies regarding employee use of employer-provided electronic communication devices, including employee access to personal accounts on such devices, or employee use of personal electronic devices during working hours.

Further, an employer is not prohibited from monitoring employee use of employer-provided electronic devices or employer-provided email accounts or obtaining information that is in the public domain or otherwise lawfully obtained. Similar legislation was previously introduced, but failed to advance.

In Maine, lawmakers introduced An Act to Protect Social Media Privacy in the Workplace, which prohibits employers from accessing employees' and applicants' passwords to private online accounts. +2013 Bill Tracking ME L.R. 178.

Rep. Michael McClellan states that while "it's inconceivable that an employer would be permitted to read an employee's diary or postal mail, listen in on the chatter at their private gatherings with friends, or look at their private videos and photo albums ... this proposal simply ensures that they cannot do the electronic equivalent."

Federal Update

The trend toward social media password legislation is not just spreading at the state level. In February 2013, the Social Networking Online Protection Act (SNOPA) was reintroduced in the new US Congress, H.R. 537.

Like equivalent laws passed or proposed by the states, the proposed federal legislation would prevent employers from seeking social media passwords and other online account information from employees and applicants and prohibit employers from punishing employees for refusing to provide such information.

Advice for Employers

Because the passage of social media privacy laws may require employers to revisit their employment policies and practices, employers should continue to stay aware of any changes on both the state and federal level.

If such laws are passed, employers would need to counsel those with hiring and management responsibilities that they are strictly prohibited from requesting or requiring that employees and applicants divulge social media passwords and account information and penalizing or disciplining individuals who refuse to provide such information.

Additional Resources

Whether Employers Like It or Not, Social Media Privacy Laws Are Catching Fire

Legislatures Aim to Protect Social Media Privacy of Employees and Applicants

Social Media Password Privacy Protection Legislation - Chart

Employee Management > Employee Privacy > Future Developments

Employee Management > Employee Privacy: Maine > Future Developments

Employee Management > Employee Privacy: Texas > Future Developments

Employee Management > Employee Privacy: Washington > Future Developments