Effective as of October 15, 2015, employers in Maine will be restricted in their ability to access the personal social media accounts of applicants and employees. Specifically, under the new law, an employer may not:
- Require, coerce or request that an employee or applicant disclose the password for a private social media account;
- Require, coerce or request that an employee or applicant access a personal social media account in the employer's presence;
- Require or coerce an applicant or employee to disclose any personal social media account information;
- Require or cause an employee or applicant to add anyone to the employee's or applicant's list of contacts associated with a personal social media account; and
- Require, cause or request that an employee alter any personal social media account settings that affect a third party's ability to view the contents of the account.
Employers also may not terminate, discipline or otherwise take adverse action against an employee, or reject an applicant, due to the employee's or applicant's refusal to cooperate with any prohibited request or demand.
The above-described prohibitions:
- Do not apply to social media accounts that are opened at an employer's behest, provided by an employer, or intended to be used primarily on behalf of the employer;
- Do not apply to publicly available information;
- Do not prohibit or restrict an employer from complying with a duty – under federal or state law or imposed by a self-regulatory organization, as defined in the Securities and Exchange Act of 1934 (like FINRA) – to screen prospective or current employees or to monitor or retain employee communications;
- Do not apply when disclosure of personal social media account information is reasonably believed to be relevant to an investigation of alleged employee misconduct or a workplace-related violation of applicable laws, rules or regulations; and
- Do not limit an employer's right to establish 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 or employer-provided software or e-mail accounts.
An employer who violates these prohibitions can be fined by Maine's Department of Labor. The law provides that such fines will be not less than $100 for the first violation, not less than $250 for the second violation and not less than $500 for each subsequent violation.
Maine is the twenty-third state to place restrictions on employers' access to applicants' and employees' personal social media accounts, joining Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maryland, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, and Wisconsin.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.