By Ryan Malloy and Erik Weibust

The Massachusetts legislature recently joined the growing wave of states nationwide that are considering bills, which, if enacted, would forbid employers from requesting social media user names and passwords from employees or prospective employees. The issue of privacy with regards to social media accounts has garnered significant attention across the country during recent months, as some employers have blocked employee access to social media websites such as Facebook or Twitter, while others have terminated employees for refusing to provide their account access information.

The Massachusetts Social Media Privacy Bill (entitled “An Act relative to social networking and employment”) provides, rather simply, that “[n]o employee or prospective employee shall be required to provide access to an employer for a social networking site.” Furthermore, the bill prohibits any employer from asking employees or prospective employees to provide “any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or electronic mail.” The bill makes clear that it does not prohibit employers from obtaining information about employees or prospective employees that is in the public domain, such as by searching their publicly-available online profiles on Facebook, LinkedIn, or the like, nor does it “limit an employer’s right to promulgate and maintain lawful workplace policies governing the use of the employer’s electronic equipment, including policies regarding internet use, social networking site use, and electronic mail use.” 

As previously reported, on April 9, 2012, Maryland became the first state to pass a social media privacy bill. In addition to prohibiting employers from asking or forcing employees and prospective employees to provide social media login credentials, the Maryland bill prohibits employers from taking adverse action against an employee who refuses to hand over the requested social media information. Although legislatures in other states, including California, Illinois, and Michigan, are also considering similar bills, Congress is not yet on board. In late March, a rule amendment that would have allowed the Federal Communications Commission to prevent employers from forcing potential employees to disclose social media passwords was halted.