Maine has become the latest state to restrict employers’ ability to access social media accounts of employees and applicants. A new Maine statute, which will go into effect on October 15, 2015, prohibits a broad range of employer conduct. Specifically, an employer may not:

• require or request that an employee or applicant disclose the password for accessing his or her personal social media account;
• require or request that an employee or applicant access a personal social media account in the employer’s presence;
• require an employee or applicant to disclose any personal social media account information;
• require an employee or applicant to add anyone, including the employer or its agents, to the employee’s or applicant’s list of contacts associated with a social media account (e.g., requiring the employee to “friend” his or her supervisor); or
• require an employee or applicant to alter the settings on a personal social media account in a way that affects the ability of third parties to view the contents of the account (e.g., making content public that the user had previously restricted as viewable by only selected contacts).

In addition, under the new law, an employee’s or applicant’s refusal to provide his or her personal social media account information or provide access to his or her account may not serve as the basis for discipline, discharge, or the imposition of other penalties (for existing employees) or as a reason not to hire an applicant. Employers could be subject to fines for violations, ranging from $100 for the first violation to not less than $500 for a third and any subsequent violation. 

Exceptions

The Maine law includes certain exceptions that are helpful to employers. First, the restrictions only apply to personal social media accounts—a phrase that excludes any social media account that is “opened at the employer’s behest or provided by an employer or intended to be used primarily on behalf of an employer.” Also, the law does not apply to information publicly available about an employee or applicant, including information an applicant or employee posts in a public manner on social media.

The law also recognizes that social media accounts—even personal ones—may contain important information employers legally ought to be able to access and, therefore, provides the following:

• Employers may require employees to disclose personal social media account information the employer reasonably believes to be relevant to an investigation of workplace misconduct or to an investigation of a workplace-related violation of laws, rules or regulations.
• Employers may maintain policies that govern the use of the employer’s electronic equipment, including a requirement that an employee disclose to the employer his or her user name, password, or other information necessary to access employer-issued electronic devices, software, or email accounts.
• Certain regulated financial sector employers may continue to screen employees and applicants prior to hiring and monitor and retain employee communications, consistent with and pursuant to their duties as established by laws and regulations particular to their industry.

Key Takeaways

Employers with Maine operations should ensure all managers and those involved in their hiring processes know of these new restrictions. In addition, employers should revisit any existing social media, electronic use, and hiring/recruiting policies and procedures to ensure that they comply with this new law. Finally, because of the exceptions provided for employer social media accounts and systems, employers may wish to reaffirm or clarify employer ownership of social media accounts used for business purposes.