Maryland Governor Martin O'Malley signed into law today legislation that makes Maryland the first state to ban employers from requiring employees or job applicants to provide access to their personal digital/social media accounts. While Maryland is the first state to enact this type of legislation, California along with other states and the federal government may soon follow Maryland's lead.
Senate Bill 433 is a huge win for the business community because it may provide Maryland businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' password protected digital content. Unfortunately, some Maryland business groups have underestimated the tremendous win that SB 433 is for the business community. This groundbreaking law may collectively save Maryland businesses millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save Maryland businesses millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.
With access comes responsibility. Since Maryland businesses will not have access to their employees' personal digital content they will not become responsible for their employees' personal social media behavior. Employers do not have a duty to monitor everything their employees do in the privacy of their real world homes so employers do not want to create a duty to monitor their employees in their digital homes.
Do businesses want to have access to content that may demonstrate that an employee is a member of a protected class? There already is a lawsuit alleging "Facebook Like Discrimination". In this lawsuit, a former federal employee alleges that he was discriminated against because his supervisor became aware that he "Facebook Liked" a page that may have indicated his sexual orientation. Therefore, this new law may save employers millions of dollars per year in legal fees and judgments that may accompany access to an employee's personal digital content.
This legislation is also a major victory for employees and job applicants. A Maryland employer may no longer ask employees or job applicants to provide access to their personal digital or social media accounts. For example, during a job interview an employer may not request an applicant log into their personal Facebook account or to "Facebook Friend" a manager. In addition, an employer may not require an employee provide access to their personal password protected digital accounts.
Job applicants and employees must understand that they should still be careful about the content they post online, utilize the proper privacy settings, and carefully screen who they "Friend" online. This is a watershed moment for both the business community and digital privacy. I hope that other states along with the federal government follow Maryland's lead to enact legislation that demonstrates an understanding of the legal and public policy implications of the Social Media Age.
(Full Disclosure: I was not paid for my work on this legislation. I worked on this legislation because I want to protect employers, employees, and job applicants from unforeseen legal issues that may arise due to a lack of understanding of the public policy and legal implications of social media usage. Therefore, I was in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution that protects the interests of employers, employees, and job applicants.)
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.