Can Your Boss Access Your Facebook, Twitter, LinkedIn, or other Social Media Accounts?

California’s law regarding employer use of social media precludes an employer from requiring or requesting an employee or applicant to:

(1) Disclose a username or password for the purpose of accessing personal social media;

(2) Access personal social media in the presence of the employer; or

(3) Divulge any personal social media, except an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

California law does not limit an employer’s right to require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Retaliation against a California employee or applicant for not complying with a request or demand by the employer that violates this section is prohibited. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Oregon recently adopted a similar law. On May 22, 2013, Oregon Governor John Kitzhaber signed into law House Bill 2654, making Oregon the tenth state to prohibit employers from accessing employees’ private social media sites. The new law goes into effect on January 1, 2014, and makes it an unlawful employment practice for employers to compel employees or applicants for employment to provide access to their personal social media accounts.

The definition of “social media” includes such standard social media venues as Facebook, Twitter and LinkedIn, as well as newer sites like Pinterest and Instagram, and personal email accounts are also included. In fact, “electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations” is covered under the new law.

Under the new law, employers, including employment agencies (i.e., temp services, etc) are prohibited from “requir[ing] or request[ing] an employee or an applicant for employment to disclose or to provide access through the employee’s or applicant’s user name and password, password or other means of authentication that provides access to a personal social media account.” Passwords and other forms of identification used to provide access to employees’ social media sites are now beyond the reach of employers or prospective employers in Oregon.

In addition to precluding the compelled access to social media accounts, Oregon employers are prohibited from “compel[ing] an employee or applicant . . . to add the employer . . . to the employee’s . . . list of contacts associated with a social media website.” In other words, employers cannot gain access to social media sites by requiring employees and/or applicants to “friend” them or to make them a contact on their social media accounts.

Oregon employers are also precluded from requiring or demanding that “an employee . . . access a personal social media account in the presence of the employer,” thus preventing the employer from viewing an employee’s content by having the employee log on to the site for the employer.

The law also prevents employers from retaliating or threatening to retaliate against employees or otherwise penalizing employees or applicants with any adverse employment action, including failure to hire, because the employee or applicant failed to provide the employer with access to the site by any of the means prohibited by the statute.

There are some limited exceptions to the new law. If the employer provided the social media account, or if the account was provided on behalf of the employer to be used for the employer, then the employee must disclose the user name and password he or she uses to access the account.

The new law does not prohibit an employer from complying with state and federal laws, rules and regulations, or conducting a legitimate employment investigation “for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct,” if the employer has reason to believe, based on specific information, that content of an employee’s personal online account or service is implicated or otherwise involved. The investigating employer may also require an employee to share social media content reported to the employer if it is necessary for the employer to make a factual determination about alleged unlawful work-related misconduct. Even so, the employer is prohibited from requiring an employee to disclose a username, password or other form of access to his or her social media accounts.

Of course, employers may access information and content posted by or about an employee or applicant that is publicly available – for example, the public information on a Facebook account and any content not designated as private by the account holder.

Numerous states have placed social media related laws on their agendas. Washington state recently passed a law similar to Oregon’s statute. And, at the federal level, Rep. Ed Perlmutter (D-CO) introduced the Password Protection Act of 2013 in the U.S. House of Representatives. The federal House bill would amend the Computer Fraud and Abuse Act and make it unlawful for employers to require employees to authorize access to a computer that the employer does not own or operate. Further, the federal House bill provides no exception allowing employers to obtain password-protected social media content that reasonably relates to a workplace investigation into allegations of harassment.

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