Social Media at Work: What Employers Can — and Can’t — Ask Employees to Share

Many employees pass their day by regularly checking their social media accounts, whether Twitter, Facebook, or other sites. Often, individuals record or post where they are employed, their extracurricular activities, pictures, updates as to their location, and other personal information. In order to keep up to speed with technology while also reconciling an individual’s privacy rights, public employee labor law in Washington is evolving.

Employees’ growing use of technological communication and social media has generated many different challenges for employers. Effective July 28, 2013, Washington codified RCW 49.44, which prohibits Washington employers from:

• Requiring an employee, or prospective employee, to divulge their username or password in order for the employer to access a personal social networking account;
• Requiring an employee, or prospective employee, to access their social networking account in the presence of the employer;
• Compelling an employee to add someone as a contact;
• Requiring an employee to alter a third party’s ability to access an account; or
• Taking an adverse action against an employee for refusing to perform the above act.

However, the law does not prohibit Washington employers from:

• Requesting content (but not logins) of a social networking site during investigations;
• Accessing employer-owned electronic devices, including cell phones and laptops; or
• Requesting login or content for information associated with a work-related network.

If employers violate the statute, then employees, or prospective employees, may bring a civil action. In addition, an injunction may be brought against the employer. Employers in violation of the law may be liable for damages and the employee’s (or prospective employee’s) attorney fees and costs.

Inevitably, the new law will catalyze employers to closely examine their employment practices, specifically their social media policies.