Employer access to employee social media content has been a hot topic for months (if not years). As we discussed in a post earlier this month, in Washington the issue made its way to the statehouse this session with the passage of Substitute Senate Bill 5211 which addresses the matter.
The law includes a wide range of provisions that have important implications for both Washington employees and employers. In general, the measure seeks to protect employees from being forced (or pressured) by their employer into giving up access to various social media sites. Of course, as with most Washington employment law matters, the details of the measure are a bit tricky, and it is likely that legal cases may be heard down the road which clarify how this all plays out.
The Law
Essentially the law does a few specific things:
1) Bars an employer from asking for social media passwords (at work or during an interview).
2) Bars an employer for asking to see the specific content on any of these social media sites.
3) Bars an employer from forcing a co-worker or other party to “friend” another in order to give the employer access to certain parts of a social media profile.
All told, this is a strong set or protections that seeks to reinforce the privacy of an employee’s life outside of the workplace. The bottom line is that if an employee wants to keep their social media profiles completely free from view by their employer they should be able to–and they should not face repercussions for failing to provide access.
Importantly, however, there is one exception to these protections–when an internal investigation into employee misconduct is made. Per the terms of the law, the employer can demand content from a site in these cases if three requirements are met:
1) An investigation is begun in direct response to a “tip” regarding misconduct on the social media site.
2) The conduct relates to possible illegal activity, work-related misconduct, or other employer-related issue
3) The employer only seeks the content itself and does not ask for general access to the site (login information).
The above is only a very general sketch of the purpose of the new law, as many other details are highlighted in the text of the law. Also, because of the somewhat fuzzy nature of the issue, it is very likely that employers may be unclear about when they can and cannot ask for information and when it is protected. Disagreements about the scope of the investigatory exception and definition of “social media site” will unquestionably come up down the road. Legal challenges are likely.
The new law explicitly provides a cause of action for employees if these rules are violated. That means that employees can seek out a lawyer and demand accountability where they can recover injunctive relief (forcing the employer to stop), monetary relief, and even attorney’s fees and costs. This is an important safeguard, providing a real incentive to ensure employers actually abide by the terms of the law or face real consequences. For help with these matters, feel free to contact our Washington employment lawyers here to see how we can help.
