Both houses of the Maryland General Assembly have passed legislation that would prohibit employers in Maryland from asking current employees and job applicants for their usernames and passwords to social media sites, for example, Facebook and Twitter. The legislation passed unanimously in the Maryland Senate and by a substantial margin in the House, and has now been sent to the Governor for his signature. If the Governor should sign, the legislation will be the first of its kind in the country.
The Maryland legislation was birthed as a result of a controversy that ensued between the Maryland Department of Public Safety and Correctional Services and the ACLU of Maryland when, back in 2010, the Department required job applicants to submit usernames and password information related to their social media sites, purportedly to check for gang affiliations. The Department dropped the requirement after protests by the ACLU. While the Maryland legislation attempts to resolve these concerns, as passed it does not explicitly provide for a private cause of action, complaint procedures, or criminal sanctions. This appears to relegate enforcement of the Maryland legislation to the realm of tort suits for wrongful termination in violation of public policy under Adler v. Am. Standard Corp., 291 Md. 31 (1981) and its progeny.
Similar legislation has been introduced in Illinois, Michigan, Minnesota, Massachusetts, and California. New Jersey Assemblyman John Burzichelli has announced that he will introduce a bill on the subject, and two United States Senators, Richard Blumenthal (D-Ct) and Charles E. Schumer (D-NY) have indicated that they will introduce federal legislation.
A more detailed analysis of these developments, will appear in this space tomorrow.
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