When recent reports shined the media spotlight on the practice of employers asking job candidates for their social media passwords during interviews, the news caught the attention of several state governments. Now, with one state officially banning the practice and others sure to follow, what was once a gray area for employers is on its way toward becoming a widely prohibited practice — and employers should be strongly cautioned against engaging in such activity with current employees or job applicants.

In March of this year, AP reported that during a job interview in Washington State, a candidate was asked for his Facebook username and password as his account profile was private. The candidate refused and withdrew his application. Following the surge of media coverage involving such incidents, several states introduced legislation banning the practice. On May 2, 2012 Maryland became the first state to pass such a law. Similar legislation is pending or will be introduced in California, Illinois, New York, Michigan, Minnesota, Missouri, South Carolina, Washington, and New Jersey. On the federal level, Rep. Eliot Engel (D-N.Y.) recently introduced legislation — the Social Networking Online Protection Act — which would also prohibit asking for the social media passwords of employees or applicants.

Besides prohibiting employers from requesting social media passwords of employees or candidates, the Maryland law will also prohibit employers from taking or threatening to take disciplinary action based on an employee’s refusal to disclose password and related information, and from refusing to hire an applicant as a result of the applicant’s refusal to disclose password and related information.

The New York bill, introduced on April 13, 2012, and referred to the Labor Committee of the New York State Senate, would provide the attorney general with the ability to seek an injunction and penalties of $300 for first violations and $500 for second violations, and the bill also would provide individuals with a private right of action for equitable relief and damages. The penalties imposed by the bill introduced on May 10, 2012 by the New Jersey Assembly are higher: a first offense requires the imposition of a $1,000 fine (collectible by the Commissioner of Labor and Workforce Development), with subsequent offenses carrying a $2,500 fine. The bill also prohibits retaliation or discrimination against employees who seek the protections provided for by the bill, and creates a private cause of action whereby the employee may seek injunctive relief, damages and attorneys’ fees.

While employers may see an advantage in being able to monitor their employees’ social media activity, the message coming from state and federal governments should be clear: The legal and public relations risks associated with asking current or prospective employees for their private social media usernames and passwords greatly outweigh the potential benefits of unrestricted access.

We will continue to monitor the progress of these pieces of legislation and advise of any important developments.

For more information about how this may impact your business, please contact:

• Josephine Belli (646.253.5400, jbelli@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group