A few weeks ago, we informed you that the Oregon House of Representatives was considering a bill that would prevent employers from requiring their employees or potential employees to provide access to their social media accounts. As KATU.com recently reported, the Oregon Senate passed House Bill 2654B with a large margin of support (28 to 1, with one excused vote). Though an earlier version of the bill already passed a House vote, it has to go back to the House for another vote because the version passed in the Senate contains a few Senate amendments.
Given that the Oregon legislature has been on a roll of passing social media bills – the Senate passed a bill in April that forbids universities from requiring their students to share private information from their social media accounts, for example – it seems likely that the bill will not face many more obstacles before becoming a state law. Given that this new regulation will likely soon be in effect across the state, it is essential for employers and employees to understand its implications, especially given the new amendments.
Why HB 2654B Is Necessary to Protect Employees’ Rights
As most people understand, access to someone’s social media account can provide a wealth of private information about that individual – their religious or political views, sexual orientation, pregnancy status, or whether they are suffering from some disease or disability, just to name a few. Employers are generally not allowed to ask about any of these issues when they interview job applicants, nor are they allowed to fire or demote an existing employee for any of these reasons. Requiring an employee to provide access to their social media account could be a way of finding out this sort of information (and improperly acting upon it) without violating the law. As such, HB 2654B protects employees from such employer-led intrusions into their privacy.
Employees’ Privacy Rights
Under the new bill, employers are not allowed to request or require their employees or potential employees to disclose any sort of authentication (including username and password) that would enable the employer to access a private social media account. They also cannot force anyone to log into their private accounts in the employer’s presence. In addition, the law forbids employers from forcing employees or applicants to add them to their list of social media contacts; for example, an employer cannot force someone to accept their ‘friend request’ on Facebook. Finally, employers cannot penalize employees or applicants in any way for refusing to comply with any such requests.
Protections for Employers
Though the main goal of the bill is to protect employees’ privacy rights, Oregon legislators also included some protections for employers, given that employees might not always use social media in a proper or legal way while at work. First, the employee protections in the bill only apply to an individual’s private accounts – any account that an employee opens on behalf of his employer is entirely fair game, as is any information that is available to the general public. If anyone could find the information by Googling it, for example, employers are not forbidden from looking it up.
Furthermore, the bill allows employers to conduct investigations, when given some specific indication that an employee has engaged in wrongdoing, as long as it does not involve asking the employee for any account authentication information. Employers can also require employees to share specific information that would aid in a factual determination of wrongdoing, but again cannot ask for things like usernames and passwords. Finally, if an employer inadvertently gains access to authentication information they would normally be forbidden from asking for, they are not liable for having the information but they are not allowed to use it.
As a matter of common sense, it is wise for all individuals to limit the amount of private information they post on their social media accounts. However, everyone has a right to keep their private life separate from their personal life, and HB 2654B helps to reinforce those privacy rights. If you believe that your employer has infringed on your privacy rights – online or in some other way – please contact one of our experienced employment attorneys to help you evaluate your claim.
