Employment Law News: New Social Media Privacy Law in Maine

Maine has a new Employee Social Media Privacy law that prohibits employers from requiring employees and job applicants to provide access to their social media accounts. In passing the law, Maine joins at least twenty other states with similar legislation. The new law goes into effect on October 15, 2015.

The Employee Social Media Privacy law follows previous efforts by the Maine Legislature to protect the privacy of social media accounts, which efforts we have summarized here and here. Under the newly enacted law, a social media account is defined as an account with an electronic medium or service through which a user creates, shares, and views user-generated content, including emails, videos, blogs, text messages, and other similar content. Expressly excluded from the definition, however, are social media accounts that are opened at the request of an employer, provided by an employer, or intended for use primarily on behalf of an employer.

In general, the new law prohibits employers from requiring employees and job applicants to provide access to personal social media accounts, and prohibits employers from taking adverse action against an employee or applicant who refuses to provide access. The law also specifically prohibits so-called “shoulder surfing,” or the practice of requiring an employee or applicant to sign into an account in the presence of the employer. In addition, employers may not require employees or applicants to disclose any personal social media account information, add any individuals to the employee’s or applicant’s list of social media contacts, or alter account settings that would affect the ability of third-parties to view the contents of an account. Employers found in violation of the law are subject to fines assessed by the Department of Labor.

The new law does provide some exceptions and does not, for example, apply to information about an employee or applicant that is publicly available, or restrict the ability of an employer to require the disclosure of certain information that the employer reasonably believes to be relevant to an investigation of employee misconduct or workplace violations. The Employee Social Media Privacy law also clarifies that nothing in the law prevents employers from implementing policies governing the use of employer-owned electronic devices and communication systems.

Going forward, employers should review their social media policies to ensure they are consistent with the Employee Social Media Privacy law. In addition, although the new law creates an exception for social media accounts that are created or used at the request of an employer, employers may need to revisit how such accounts are used and clarify the ownership in such accounts. Failure to do so may lead to complications, not only under the Employee Social Media Privacy law, but other privacy-related laws such as the federal Stored Communications Act.