Following at least twenty other states, the Maine Legislature has enacted 26 MRSA 615, which goes into effect on October 15, 2015. This new law protects the privacy of social media accounts by making it illegal for employers to require that employees or applicants disclose their social media passwords or to require access to social media accounts in the presence of the employers. The law also prohibits employers from requiring employees or applicants to alter their social media settings or from requiring that an employee add someone to their list of social media contacts (e.g. the employer would be prohibited from requiring that an employee or applicant “friend” the employer on Facebook or become a contact on LinkedIn). Any employee or applicant who is the subject of an adverse employment action (failure to hire, termination, etc.) because of the above prohibition would have a means of redress against the employer to the tune of civil penalties ranging from $100 to $500, but the real risk here is that a violation of the statute would provide solid evidence of discriminatory intent that could be used in a more costly civil action under any number of state or federal discrimination laws.
There are a few noteworthy exceptions, the most significant being that an employer is not prohibited from requiring an employee to disclose personal social media account information if the employer reasonably believes it is necessary and relevant to a misconduct investigation. Also, social media accounts that are opened at the request of the employer or for the benefit of the employer are not impacted by this law.
The import of this law is clear: employers should be sure they have social media policies that protect the company, but do not unduly interfere with the rights that the Legislature is providing to employees.
The full text of the law is attached below.
EMPLOYEE SOCIAL MEDIA PRIVACY
As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.
1. Applicant. “Applicant” means an applicant for employment.
2. Employee. “Employee” means an individual who provides services or labor for an employer for wages or other remuneration.
3. Employer. “Employer” means a person in this State who employs individuals and includes the State and political subdivisions of the State. “Employer” includes a person acting in the interest of an employer directly or indirectly.
4. Social media account. “Social media account” means an account with an electronic medium or service through which users create, share and view user-generated content including but not limited to videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online service accounts and Internet website profiles and locations. “Social media account” does not include an account opened at an employer’s behest or provided by an employer or intended to be used primarily on behalf of an employer.
An employer may not:
1. Passwords. Require or coerce an employee or applicant to disclose, or request that an employee or applicant disclose, the password or any other means for accessing a personal social media account;
2. Access in presence. Require or coerce an employee or applicant to access, or request that an employee or applicant access, a personal social media account in the presence of the employer or an agent of the employer;
3. Information. Require or coerce an employee or applicant to disclose any personal social media account information;
4. Contacts. Require or cause an employee or applicant to add anyone, including the employer or an agent of the employer, to the employee’s or applicant’s list of contacts associated with a personal social media account;
5. Settings. Require or cause an employee or applicant to alter, or request that an employee or applicant alter, settings that affect a 3rd party’s ability to view the contents of a personal social media account;
6. Employees. Discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize an employee for the employee’s refusal to disclose or provide access to information as specified in subsection 1, 2 or 3 or for refusal to add Page 3 – 127LR1243(07)-1 anyone to the employee’s list of contacts associated with a personal social media account as specified in subsection 4 or to alter the settings associated with a personal social media account as specified in subsection 5; or
7. Applicants. Fail or refuse to hire an applicant as a result of the applicant’s refusal to disclose or provide access to information specified in subsection 1, 2 or 3 or refusal to add anyone to the applicant’s list of contacts associated with a personal social media account as specified in subsection 4 or to alter the settings associated with a personal social media account as specified in subsection 5.
1. Publicly available information. This subchapter does not apply to information about an applicant or employee that is publicly available.
2. Duty to screen or supervise. This subchapter does not prohibit or restrict an employer from complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications that is established by a self-regulatory organization as defined by the federal Securities Exchange Act of 1934, 15 United States Code, Section 78c(a)(26) or under state or federal law, regulation or rule to the extent necessary to supervise communications of regulated financial institutions or insurance or securities licensees for banking-related, insurance-related or securities-related business purposes.
3. Investigation. This subchapter does not prohibit or restrict an employer from requiring an employee to disclose personal social media account information that the employer reasonably believes to be relevant to an investigation of allegations of employee misconduct or a workplace-related violation of applicable laws, rules or regulations if requiring the disclosure is not otherwise prohibited by law, as long as the information disclosed is accessed and used solely to the extent necessary for purposes of that investigation or a related proceeding.
§618. Workplace policies
This subchapter does not limit an employer’s right to promulgate and maintain lawful workplace 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, including but not limited to cellular telephones and computers, or to access employer-provided software or e-mail accounts.
§619. Penalties for violation
An employer who violates this subchapter is subject to a fine imposed by the Department of Labor of not less than $100 for the first violation, not less than $250 for the 2nd violation and not less than $500 for each subsequent violation.