Can You Be Required to Turn Over Your Social Media Passwords?

Advice, Surviving Workplace Investigations
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social mediaIf you’re applying for a job, or as part of your current job, can your employer ask you to turn over the passwords to your social media accounts? Your ability to keep your social media posts private from a future or current employer depends on where you are (because laws vary by state) and on the purpose behind the request (basic snooping or part of a bona fide investigation into wrongdoing).
Some employers are taking advantage of the insight social media posts provide about job applicants and employees. Postings may show a person harming an employer’s image, disclosing confidential information or trade secrets, showing a tendency toward violence, or engaging in drug or alcohol abuse. But it’s unsettling that information we think should be confidential, with the help of secret passwords, could be used by employers who could sm1make decisions affecting our lives. In 21 states, this practice is illegal and, depending on the circumstances, may violate federal laws.

The federal Electronic Communications Privacy Act makes it a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless the party has given his or her prior consent. Violations can result in imprisonment for not more than five years, fines up to $250,000 (up to $500,000 for organizations), civil liability for damages, attorneys’ fees, and possibly punitive damages. If your employer uses software or some type of electronic device to access your social media posting and private e-mails without your consent, your employer could be breaking this law.

If your employer wants access to your social media posts to find out whether you’ve been discussing the terms and conditions of your employment, that may violate the National Labor Relations Act.

Maryland and Virginia have laws concerning the privacy of employees’ social media accounts.

  • Maryland: Employers cannot request or require disclosure of usernames or passwords to personal social media accounts or take or threaten to take disciplinary action against employees or applicants who refuse to disclose such information.
  • Virginia: Virginia law prohibits employers from requiring prospective or current employees to disclose the username and password to their social media accounts (effective July 1, 2015).

Maryland Law Starts the Trend Protecting Employees

sm4Maryland was the first state to have this type of law on the books, enacting its law in 2012. The issue was brought to light when the state’s chapter of the American Civil Liberties Union (ACLU) raised concerns when it took up the case of corrections officer Robert Collins. He reached out to the ACLU after being asked for his Facebook password in a recertification interview with the Department of Public Safety and Correctional Services.

“Collins felt he had no choice but to provide his password, even though he knew it was not right, because he needed the job to support his family,” the ACLU said in a statement quoted by the Baltimore Sun. “Collins had to sit there while the (interviewer) logged on to his Facebook account and reviewed his messages, wall posts, and photos.”

The ACLU complained to the corrections department, which temporarily suspended and then revised its policy to allow applicants to “voluntarily participate” in a review of their social media accounts. The department defended its practices, claiming it led to the denial of job offers to seven individuals who had “utilized social media applications which contained pictures of them showing verified gang signs.”

Virginia Law

sm5Virginia law prohibits employers from requesting usernames and passwords for social media accounts of current employees or applicants. The law includes the following prohibitions:

  • requiring a current or prospective employee to disclose the username and password to his social media account;
  • requiring a current or prospective employee to add an employee, supervisor, or administrator to his list of contacts;
  • using any login information inadvertently obtained to access an employee’s social media account;
  • disciplining an employee for exercising his rights under this section; and
  • refusing to hire an applicant for exercising his rights under this section.

The law does not cover social media accounts that meet the following criteria:

  • are opened by the employee at the request of the employer;
  • are provided to an employee by the employer, such as an e-mail account;
  • are set up by an employee on behalf of an employer; or
  • are set up by an employee to impersonate an employer.

An employer can also view social media account information that is publicly available to conduct investigations or to comply with state or federal law.

Summing It Up

If you are asked to turn over information about your social media accounts but feel this is an invasion of your privacy, here are some points to ponder and steps to take:

  • If you are in Maryland or Virginia, this is probably illegal.
  • Ask about the purpose behind the request and whether the disclosure is optional or mandatory.
  • Ask whether you can take some time to decide, and call our office to discuss the situation.

Ultimately, the decision is up to you. You will have to weigh your desire to obtain or keep a job against maintaining your privacy, especially if your posts include subjects that you feel a current or potential employer may be find objectionable.

If you have any questions about your privacy rights as a job applicant or employee, contact our office so we can talk about your situation, your social media content, and your best options moving forward.