Password Debate: Taking It To the States

May 23, 2012 - by: admin 0 COMMENTS

In the first post of this series on the debate over employers asking employees and applicants for social media passwords, we covered how two Senators have asked the Equal Employment Opportunity Commission and Department of Justice to investigate the reported phenomenon and how a bill prohibiting the practice failed in the House of Representatives. Although that piece of legislation failed, similar bills are being considered and passing at the state level. In this post, we’ll look at what state legislators are doing about employers that demand social media passwords.

So far, legislation to limit or bar password requests has been considered or passed in California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, and Washington. The proposals largely forbid employers from asking applicants or employees for passwords, and some forbid penalizing those who complain about the practice or refuse to give out passwords. Some cover e-mail as well as social media passwords.

Here is a look at what some of our Employers Counsel Network attorneys have to say about the developments in their states:

  • Maryland Employment Law Letter contributor David M. Stevens notes that “Maryland General Assembly became the first state legislature in the country to pass legislation prohibiting employers from requesting access to employees’ and job applicants’ personal electronic accounts.” The bill creates a general rule 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 an electronic communications device.” Barring a veto of the legislation by Governor Martin O’Malley, which is very unlikely, the new law will take effect October 1, 2012.
  • California Employment Law Letter assistant editor Cathleen Yamahara notes that the Facebook password privacy bill that was original introduced in the state’s Senate has been “recently amended to create an exception allowing employers and educational institutions to request (but not require) applicants, employees, and students to allow access to their personal social media account information to aid in an investigation into harassment, discrimination, intimidation, or potential violence.”
  • Delaware Employment Law Letter contributor Molly DiBianca contends that the Workplace Privacy Act introduced May 1 in the state’s House “seeks to address employees’ legitimate privacy concerns but disregards the fact that there are occasions when an employer has legitimate interests in an applicant’s or employee’s social networking activity.”
  • prohibit employers and their representatives from requiring employees or job applicants to disclose their social media login information;
  • ban employers from discharging, disciplining, or otherwise penalizing employees for refusing to disclose their login information:
  • give the New York attorney general the authority to stop such practices; and
  • subject employers to a $300 fine for a first offense and $500 for subsequent offenses.

In the final post of this series on Friday, we’ll discuss what employers that don’t reside in a state that already has passed a password privacy law should be doing.

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