Governor O'Malley Signs Maryland Law Prohibiting Employers from Seeking Access to Personal Social Media Information; Other States Considering Similar Bans

by Saul Ewing Arnstein & Lehr LLP


On May 2, 2012, Governor O'Malley signed legislation making Maryland the first state to legislatively ban employers from requiring employees or job applicants to provide access to their personal social media and other Internet-based accounts. While Maryland is the only state to have enacted such legislation to date, other states appear poised to follow suit. Similar legislation was introduced before Congress on Friday, April 27, 2012.

What Happened?

Under Maryland's User Name and Password Privacy and Exclusions law, which was signed by Governor O'Malley on May 2, 2012 and will take effect on October 1, 2012, all employers engaged in business in Maryland will be prohibited from requesting or requiring that an employee or job applicant disclose any username, password, or other means of accessing an electronic communications personal account or service, including a social media account. It also prohibits employers from discharging, disciplining, or otherwise penalizing an employee or job applicant for refusing to disclose such information. An exception to these prohibitions allows employers to require employees to disclose their login information for any non-personal accounts that provide access to the employer's internal computers or information systems.

The law will not allow employees to use these privacy protections as a "shield" to hide business-related activity from their employers, however. If an employer receives information that an employee is using a personal account for "business purposes" or has copied sensitive company information, without authorization, to a personal account, the employer may investigate, although the legislation does not detail what investigative measures employers may use. The legislation also specifically prohibits employees from copying their employer's proprietary information or financial data into a personal account without proper authorization.

A number of other states are following Maryland's lead. New Jersey legislators plan to introduce a bill that would prohibit employer inquiries into existing and prospective employees' personal account login information, a prohibition that the bill provides cannot be waived as a condition of employment. Unlike Maryland's bill, which does not articulate any specific penalties or enforcement mechanism, New Jersey's proposed bill would also include civil penalties for violation. A bill introduced in Massachusetts would prohibit employers from requiring employees or prospective employees to provide access to any otherwise private social networking site or personal email account. Legislation introduced in New York would bar employers from inquiring into employees' or job applicants' personal account login information, and would allow the state attorney general to seek injunctive relief to remedy any violation. The New York legislation proposes that violators be fined, in addition to being subject to suit by individuals for equitable relief and damages. Other states in which similar legislation has been introduced include California, Illinois, and Washington.

At the federal level, lawmakers introduced the Social Networking Online Protection Act on Friday, April 27, 2012. This legislation would prohibit current or potential employers from requiring employees or job applicants to provide access to online content, whether by providing a username and password or by other means. The bill would forbid employers from seeking such access to discipline, discriminate against, or deny employment to any individual. Violation of any of these prohibitions would subject an employer to a civil penalty of up to $10,000. In addition, this legislation would go beyond the employment relationship, to also prohibit educational institutions from requesting such information from students.

Meanwhile, U.S. Senators are pressing the Department of Justice and U.S. Equal Employment Opportunity Commission ("EEOC") to investigate employers' practices of asking job applicants for social media passwords during interviews under current laws. Their concerns include that such practices may violate existing privacy, fraud, or anti-discrimination laws.

What Does This Mean For Employers?

Maryland's new law goes beyond prohibiting employers that do business in Maryland from requesting login information for social media and other personal Internet-based accounts from any employee or job applicant, regardless of whether the employee or applicant is physically located within the state. It also encompasses such practices as requiring a job applicant to log into his or her account during a job interview, asking a job applicant or employee to provide printouts of his or her social media account, or requiring an employee to "friend" the company or a human resources manager, for example. However, employers may still investigate an employee's business-related use of an otherwise personal account, or an employee's unauthorized copying of company information to a personal account, although the law does not define what characteristics separate a personal account from a professional or business account. Also, the law does not prohibit employers from searching the Internet — including any publically-accessible portions of social media pages — for information about employees or job applicants.

In light of Maryland's new legislation, Maryland employers should examine their hiring and employment policies to ensure compliance before the law takes effect on October 1, 2012. Employers should also stay alert for legal developments that may further define areas that Maryland's law leaves open for interpretation — such as the characteristics of a "personal" account and what investigative inquiries are reasonable in the social media context. While similar laws have not yet been enacted outside of Maryland, employers in other states should be aware that many state legislatures appear poised to quickly follow Maryland's lead, and similar restrictions at the federal level may not be far behind. Moreover, employers should also be aware that their policies regarding employees' use of social media may implicate the National Labor Relations Act ("NLRA"). Within the last several months, the National Labor Relations Board ("NLRB") has received dozens of unfair labor practice charges against union and nonunion employers alike, alleging that employers' social media policies unduly restrict employee rights protected under the NLRA. The NLRB has issued complaints in several cases and, in at least one case, an employer has been ordered to reinstate employees it terminated for having engaged in social media activity the employer considered to be inappropriate.

One thing seems clear: employers can expect increasing scrutiny of their policies and practices regarding employees' use of social media from federal and state regulators, legislators and the courts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Saul Ewing Arnstein & Lehr LLP | Attorney Advertising

Written by:

Saul Ewing Arnstein & Lehr LLP

Saul Ewing Arnstein & Lehr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.