By Anne-Marie L. Storey, Esq.
A bill entitled Employee Social Media Privacy (enacted on July 12 but unsigned) will now become law as of October, based on the Maine Supreme Court’s recent decision.
This new law applies to all employers in Maine and includes the State and political subdivisions of the State.
The law prohibits an employer from doing the following:
1. requiring or coercing an employee or applicant to disclose, or request that an employee or applicant disclose, the password or any other means for accessing a personal social media account;
2. requiring or coercing an employee or applicant to access, or request that an employee or applicant access, a personal social media account in the presence of the employer or an agent of the employer;
3. requiring or coercing an employee or applicant to disclose any personal social media account information;
4. requiring or causing an employee or applicant to add anyone, including the employer or an agent of the employer, to the employee’s or applicant’s list of contacts associated with a personal social media account;
5. requiring or causing an employee or applicant to alter, or request that an employee or applicant alter, settings that affect a 3rd party’s ability to view the contents of a personal social media account;
6. discharging, disciplining or otherwise penalizing or threatening to discharge, discipline or otherwise penalize an employee for the employee’s refusal to disclose or provide access to information as specified in subsection 1, 2 or 3 or for refusal to add anyone to the employee’s list of contacts associated with a personal social media account as specified in subsection 4 or to alter the settings associated with a personal social media account as specified in subsection 5; or
7. failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose or provide access to information specified in subsection 1, 2 or 3 or refusal to add anyone to the applicant’s list of contacts associated with a personal social media account as specified in subsection 4 or to alter the settings associated with a personal social media account as specified in subsection 5.
“Social media account” is defined as an account with an electronic medium or service through which users create, share and view user-generated content including but not limited to videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online service accounts and Internet website profiles and locations. “Social media account” does not include an account opened at an employer’s behest or provided by an employer or intended to be used primarily on behalf of an employer.
These prohibitions are not applicable to information about an applicant or employee that is publicly available.
The law does NOT prohibit the following:
1. complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications that is established by a self-regulatory organization as defined by the federal Securities Exchange Act of 1934, 15 United States Code, Section 78c(a)(26) or under state or federal law, regulation or rule to the extent necessary to supervise communications of regulated financial institutions or insurance or securities licensees for banking-related, insurance-related or securities-related business purposes.
2. requiring an employee to disclose personal social media account information that the employer reasonably believes to be relevant to an investigation of allegations of employee misconduct or a workplace-related violation of applicable laws, rules or regulations if requiring the disclosure is not otherwise prohibited by law, as long as the information disclosed is accessed and used solely to the extent necessary for purposes of that investigation or a related proceeding.
Finally, the law does not limit an employer’s right to promulgate and maintain lawful workplace policies governing the use of the employer’s electronic equipment, including a requirement that an employee disclose to the employer the employee’s user name, password or other information necessary to access employer-issued electronic devices, including but not limited to cellular telephones and computers, or to access employer – provided software or e-mail accounts.
An employer who violates this subchapter is subject to a fine imposed by the Department of Labor of not less than $100 for the first violation, not less than $250 for the 2nd violation and not less than $500 for each subsequent violation.
The news might not be all bad under the law. Interestingly, paragraph (2) above with the exception to the limitations is quite broad and perhaps might even be interpreted to give an employer additional leverage to require production of materials in the course of an investigation than it was previously presumed to have. In addition, the further exception does not limit an employer from having and enforcing policies regarding employer- provided media devices. To the extent you have workplace policies addressing social media, you may want to review them to ensure they are consistent with this, as of October.