Employees’ rights to privacy: Social media

Joe Vance Kathryn Rasmussen

Washington’s social media law applies to all employers and prohibits them from requiring, requesting or coercing a current or prospective employee to (1) provide access to a personal social media account, including sharing passwords or login information; (2) add the employer to the employee’s or applicant’s social media contact list or as a “friend”; (3) allow the employer to view the employee’s or applicant’s personal social media account (i.e., the employer may not loom over an employee’s shoulder while he or she uses Facebook, Pinterest or even LinkedIn). Finally, the law also prohibits an employer from requiring a current or prospective employee to alter the privacy settings on his or her social networking account, for example, to change the privacy settings in a way that allows a third party or the public to view the account.

The law states that an employer may not retaliate against an employee or applicant for refusing to provide the employer with access to his or her social media account by any means prohibited by the statute. A current or prospective employee is provided with a private right of action against any employer that violates the social media statute.

Washington’s social media law does have some narrowly drawn exceptions specifying when an employer may require an employee to provide access to his or her social media account or use content that it obtains from an employee’s or applicant’s social media account. Examples include the following:

• An employer may require the employee to disclose his or her password and other account access information if the employer provided the social media account or if the account was provided by the employer to be used for the employer.

• An employer may use or require an employee to share content from his or her social media account if necessary to comply with state and federal laws, rules and regulations, or to conduct a legitimate employment investigation. For example, the employer may access social media content related to investigations of sexual harassment complaints or the potential loss of an employer’s trade secrets.

• Employers may access information and content posted by or about an employee or applicant that is publicly available. If an employer inadvertently gains knowledge of an employee’s access information by monitoring usage of the employer’s network or employer-provided devices, the employer is not liable for having the information if the employer does not use the information to access the employee’s social media accounts.

Accordingly, employers should be careful about requesting or requiring information related to the private social media accounts of employees and prospective employees and should carefully consider whether any of the exceptions to the law apply before accessing an employee’s social media account or information (also, keep in mind that the exceptions apply only to the content of the social media; an employer is always prohibited from accessing an employee’s login information). If the employer has provided employer-financed social media accounts to employees, the employer should protect its access to these accounts by giving employees notice in writing. Finally, an employer should review its social media policies to make sure they conform to the applicable statute, consider drafting a policy if none exists, and think about providing training for managers, supervisors and others involved in the hiring process.

Joseph Vance is a partner at Miller Nash LLP and chair of Miller Nash’s Vancouver litigation team. His practice is focused on business litigation and employment law & labor relations. Joe can be reached at 360.619.7032 or at joseph.vance@millernash.com.

Kathryn Rasmussen is an associate at Miller Nash LLP and a member of Miller Nash’s Vancouver litigation team. Kathryn can be reached at 360.619.7018 or at Kathryn.rasmussen@millernash.com.

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