Each year social media programs, including Facebook, Twitter, Tumblr, SnapChat, and others, become more popular, with greater numbers of employees participating and sharing ever more information about their lives and work. The type of information that employees share over social media includes information about nearly every aspect of their lives, from personal details related to how the employee spends his or her free time, to his or her political beliefs, to frustrations the employee may be experiencing at work. Given this potential treasure trove of information, in an effort to improve their workforce many employers attempt to access their employee’s or potential employee’s social media accounts.
Although these social media programs often contain valuable information, the employee or potential employee often does not want to share this information with his or her employer. In recognition of this reality, in 2013, Washington became one of eight states to enact legislation that provides a measure of privacy for employees’ social media activity.
The statutory restrictions on accessing an employee’s social media accounts in Washington, codified as RCW 49.44.200 and 49.44.205, prohibit employers from requiring employees or applicant to provide access to the employee’s social media accounts. The statute, which applies to any business with at least one employee, attempts to prevent an employer from coercing an employee or an applicant from sharing the information contained in the employee’s or applicant’s social media account.
Specifically, the statute prohibits employers from doing five things:
1. Requesting, requiring or coercing an employee or applicant to provide login information for a social media account.
2. Requesting, requiring or coercing an employee or applicant to access his or her social media account in a manner which would allow an employer to see the contents of the account.
3. Compelling or coercing an employee to add the employer to the list of the contacts associated with the account.
4. Requesting, requiring or coercing an employee or applicant to alter the settings on any social media account in order to allow any third parties to see the contents of that account.
5. Taking any adverse action against an employee for refusing to take any of these actions.
It should be noted that although the statute does not prohibit an employee or applicant from associating himself or herself with an employer, care should be taken to ensure that all parties are doing so voluntarily. If there is any question about whether an employee’s or applicant’s association with an employer on social media was voluntary, an employer may later be accused of improperly coercing the employee or applicant to do so. Moreover, it does not prevent an employer from accessing social media accounts which the employee or the applicant has previously made available to the public. However, accessing this public information can provide valuable information; it also poses some risks depending on the information learned (an unsuccessful applicant may claim for example that he was not hired because information in his social media revealed his sexual orientation). An employer may want to consult with their employment counsel to discuss the risks of this approach in advance of doing so.
Despite this general prohibition against attempting to obtain access to a social media account, there is a well-defined and limited exception in which an employer can ask an employee or applicant for this information in the course of an investigation. To meet this exception, the situation must meet four criteria: (1) the information must be necessary to make a factual determination in an investigation, (2) the investigation must be undertaken as a result of a the employee’s activity on his or her social networking account, (3) the investigation is to ensure compliance with law, regulation, or prohibition against misconduct or investigate an allegation that proprietary or financial data is being transferred, and (4) the employer does not request login information. Given the narrowness of this exception, an employer may want to determine whether there are other avenues to gather this information or consult their employment counsel in advance of relying on this exception.
In addition, there are a number of other exceptions to the statute. Most notably, the statute largely exempts an employer’s own systems. For example, the statute does not apply to any social network or intranet created by an employer which is intended primarily to allow employees to exchange work related information. In addition, the statute provides a safe harbor where an employer inadvertently learns an employee’s log in information, for example where an employee logs into a social networking account from work, and the information is automatically stored on the computer. In that case, an employer will not be liable under the statute, unless it uses that information.
More than simply prohibiting the behavior, the statute provides an employee the right to sue for its violation, and collect damages that are relatively severe. Specifically, RCW 49.44.205 allows an employee who can prove a violation to collect monetary damages he or she can prove stemmed from the violation, plus a penalty award of $500, as well as his or her reasonable attorneys’ fees in bringing the case. Although the monetary damages and penalty may appear relatively small, attorneys’ fees can accrue to be quite significant through trial.
An employer should take a number of actions as a result of this statute. First, an employer should review its hiring procedures to ensure that it does not explicitly request an employee’s social media log in information. Second, employers should train its leadership to refrain from following subordinates on social media, unless there are sufficient indicators that doing so is voluntary. Third, employers should update their social networking policies to provide that an employee never needs to provide access to any social networking account to anyone else at work, and require them to report if they have felt any pressure to do so.