NM Employers Can’t Ask for Applicants’ Facebook Passwords

Man peeking out of laptop


Joining a handful of other states that limit employer access to social media accounts, New Mexico on Apr. 5 passed a law forbidding employers from demanding passwords from prospective employees.


Job Applicants Only

Under the new law, employers are forbidden from requesting or requiring job applicants to provide access to their social media accounts.

“Joining Maryland, Illinois, California, Michigan and Utah, New Mexico is now the sixth state to prohibit employers from mandating access to a job applicant’s password-protected social media account,” note lawyers Katharine H. Parker and Daniel L. Saperstein in a client alert from Proskauer Rose.

“Unlike the other laws, however, New Mexico’s is silent as to current employees,” add Parker and Saperstein. “It also should be noted that New Mexico’s new law does not set forth a remedial scheme for damages or penalties.”

The New Mexico law makes exceptions for employers to use policies to regulate and monitor employees’ use of the Internet and social media sites at work, and to snag all the publicly-available info they can about prospective employees.


Snow Balls in the Desert

Yasmin Zarabi headshot

Yasmin Zarabi

New Mexico is adding to an avalanche that began in 2010 when a job applicant at the Maryland Department of Corrections was asked for his Facebook password during an interview; the interviewer wanted to make sure he wasn’t affiliated with any gangs.

“The applicant made a compliant to the ACLU and then from there, the story snow balled to states taking action to prohibit employers requiring employees or potential employees to provide access to their social media accounts,” Yasmin Zarabi, senior legal director at Hearsay Social in San Francisco, tells Lawyers.com.

Multiple states have now passed or are considering laws that limit the rights of employers to request or require employees to provide social media site user ID, passwords, or data, Zarabi noted in a recent blog post rounding up the state action for Hearsay.


No-Brainer Is Headache for Employers

One would think it’s a no-brainer: Employers clearly shouldn’t violate the privacy of employees – or prospective employees – in this blatant a manner. But in their rush to prevent ridiculous situations like the one in Maryland, some states are creating laws that are so broad, employers may be unable to protect their brand, which also seems like a no-brainer.

Zarabi says states are struggling to find “the balance between the employee’s right to privacy versus the employer’s right to  protect itself against liability from employee misconduct on social media. The fact of the matter is that many employees use social media for both personal and business activities.”

“Business use is significant and it varies from posting comments, responding to customer complaints, sharing news or mind-share, promotion of products/services and connecting with prospects,” Zarabi points out. “Shouldn’t employers have the right to know and monitor their employees’ activities on social media that happen on the company’s behalf?”


Striking a Balance

“The majority of these state laws are not distinguishing the prohibition of monitoring or accessing of ‘personal versus business’ use,” Zarabi maintains. “This fundamental difference should be addressed in these state laws.”

A federal law could eventually supersede such state efforts. The ACLU, which took up the cause when the Maryland case first arose, is pushing for more regulation of employers on the federal level. It says it hopes Congress will pass the Password Protection Act and the Social Networking Online Protection Act – which still don’t go as far as it thinks they should.

Hearsay, along with many employers — including those of the financial services industry, which is already heavily regulated in what its employees can and can’t post online — is lobbying for any federal law to “secure the right of employers to monitor and supervise their employees’ business social media activities.”

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