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Social networks get workplace protection

Maryland workers will soon be able to tweet, update their Facebook status and post information in LinkedIn without worrying about their bosses seeing any of it.

The General Assembly passed a bill on Monday that would ban employers from asking employees or prospective employees for passwords to their private social media accounts.

If Gov. Martin O’Malley signs the bill, Maryland will become the first state with such a law. Similar legislation is being considered in California, Michigan and Illinois.

The legislation, SB 433/HB 964, also stipulates that an employer cannot take disciplinary action against job applicants or employees for refusing to provide their user names and passwords.

Bradley S. Shear, a lawyer in Bethesda, said the bill will benefit employers as well as employees. With the law, employers can no longer be sued for failing to monitor employees’ social media accounts, he said.

“An employer may become liable if they miss a post they should have seen and don’t notify authorities,” said Shear, of the Law Office of Bradley S. Shear LLC.

As a business lawyer, Shear said he has long advised clients not to ask for passwords because rejected applicants can then claim they were not hired because of their age, marital status or other information gleaned from the social media account.

Timothy F. McCormack, an attorney with Ballard Spahr LLP in Baltimore, said he also cautions employers not to look at accounts when hiring.

“I think it was always tempting for new employers,” McCormack said. “People put stuff up on Facebook that they probably don’t share on a job interview.”

By looking an applicant’s social media account, an employer could be making a hiring decision based on prohibited information, he said.

“We have been saying for years that we thought it was a poor idea to look at social media and it was risky looking at social media,” McCormack said. “If [the bill is] signed, not only will it be a poor idea, but it’s against the law.”

The measure does give employers the right to request an employee’s user name and password under limited circumstances — if, for example, they are connected to the employer’s network or computer system, or to investigate if the employer suspects a worker is displaying proprietary information on a social media account.

“There is almost always an exception to every rule,” Shear said. “It is a workable and flexible piece of legislation. It not only protects privacy rights, but also provides businesses in the corporate community a very well-balanced piece of legislation that would allow them to prosper.”

The bill follows an incident last year in which an employee at the state Department of Public Safety and Correctional Services complained when he was asked to provide his Facebook sign-in during a recertification interview. The department had instituted a practice of checking employees’ social media accounts for gang affiliations. After the American Civil Liberties Union of Maryland complained, the department stopped the practice.

“We felt this was the tip of the iceberg,” said Melissa Goemann, legislative director of the ACLU of Maryland. “We felt this was something to get out ahead of with technology changing so quickly. It was really the time to make sure people’s personal privacy was protected.”

The employment legislation will take effect Oct. 1, if signed by the governor.

“Maryland, in my opinion, has really shown the way in the judicial side of public policy,” Shear said. “I really think Maryland is taking the lead in social media law and public policy.”