If a prospective employer asks for your Facebook password because he has to check you out, should you give it to him? If your boss wants to see your professional ties, is it OK to let her search your LinkedIn account?
That's the dilemma Robert Collins faced when an interviewer asked for his Facebook password as he reapplied as a Maryland corrections officer after a four-month leave of absence.
"I was sitting there in a state of awe," Mr. Collins recalls. "He basically implied my collaboration was compulsory." Collins complied, fearing he wouldn't get rehired. Then he got mad. He contacted the local chapter of the American Civil Liberties Union, which filed a written protest to the Maryland Department of Public Safety and Correctional Services.
Savvy employers already check an applicant's "digital footprint." Some companies have gone even further, requesting or even demanding individuals' social media passwords to look at data not open to the public. Whether this practice is legal remains unclear. One state is banning the practice, and at least 10 other states have bills that have been introduced. A few courts have ruled that such requests violate the federal Stored Communications Act, but the US Supreme Court has not addressed this issue. This legal uncertainty leaves many workers on shaky legal ground.
"Most people don't take a problem seriously until it happens to them or somebody they know," says Lewis Maltby, president of the National Workrights Institute, a Princeton, N.J., advocacy group. "Unfortunately, more people are going to have to lose their jobs before enough people take the problem seriously."
Soon after Collins's complaint against Maryland's corrections department last year, state Sen. Ronald Young introduced a bill that would ban em-ployers from requiring or even asking for social media passwords. The bill did not pass in 2011, but was reintroduced and in April passed the House and Senate with almost unanimous support. In May, Maryland Gov. Martin O'Malley signed the bill, making Maryland the first state to ban the practice, starting Oct. 1. At least 10 states have introduced similar legislation, according to Pam Greenberg, an expert on information technology for the National Conference of State Legislatures. "It's likely we'll see additional bills added to this list," she writes in an e-mail.
At the federal level, the Social Networking Online Protection Act would make it illegal for employers and schools to require employees, applicants, and students to divulge their online information for hiring, enrollment, or discipline.
The Maryland bill was opposed by the Chamber of Commerce and the Maryland Retailers Association. The chamber did not generally disagree with the spirit of the law, but worried that its constraints and ambiguities could hinder an employer's ability to handle in-house accusations of sexual harassment, for example. "There are times when privacy interests have to yield to legitimate other interests," says Elizabeth Torphy-Donzella, a Baltimore lawyer who presented the chamber's concerns to the state legislature.
In Oregon, for example, a nursing assistant was arrested and convicted of invasion of privacy after posting pictures of dying nursing home patients on her Facebook page with demeaning captions. She lost her job and nursing certificate.
But the Maryland legislature didn't embrace the chamber's suggested modifications, Ms. Torphy-Donzella says. "I predict there will have to be corrective legislation."
Proponents say the Maryland law helps employers. The more a firm finds out about employees, the more it opens itself up to a possible lawsuit in the event the employee is terminated, or commits an act the em-ployer had foreknowledge of and, therefore, could possibly have prevented, says Bradley Shear, a Bethesda, Md., social media lawyer who worked closely with Mr. Young's team to create the Maryland legislation, in an e-mail. "I don't think employers want to create a new legal duty in the digital space."
Until the legal situa-tion becomes clearer, should a person hand over passwords when an employer asks?
"I know this response sounds like a lawyer, but it depends," says Mr. Shear. "It is a personal decision that someone has to make when confronted with this situation."
"Currently, in most states, asking for the password is lawful, and firing someone without cause is lawful as well," says John Riccione, a lawyer at Chicago-based Aronberg Goldgehn. So employees have to weigh the individual circumstances.
"Whatever you do, don't complain about your job on your blog," says Mr. Maltby of the National Workrights Institute. "You would think that most employers would be mature enough not to get their knickers in a twist after a bad day at work, but don't think like that."