From Facebook to LinkedIn, Twitter to Snapchat, Pinterest to Google+, businesses are increasingly reliant on social media for seeking talent, gaining market share, staying on top of industry trends and much else. Effective and innovative use of social media is a necessity in some industries, and beneficial in most. But as employers find new ways to capitalize on the many uses and benefits of social media, they must also be aware of the potential challenges of it becoming ubiquitous in business. For example, many employees – especially in sales – may maintain personal Twitter accounts in an attempt to acquire clients, but can an employer access such an account, particularly if an employee leaves? Additionally, regarding an employee’s purely personal account, can an employer force its employee to reveal the contents of the employee’s personal social media account, especially if the employee is “friends” with the employer’s clients?
In 2013, Washington passed a law restricting the ways in which employers can use and access the social media accounts of both current and prospective employees (Washington’s “social media statute”). The statute governs the degree of involvement that employers can have in the social networking activities of both current and prospective employees; restrictions do not apply, however, if a social media account was provided by the employer, particularly if it was to be used for the employer. For example, while the law generally prohibits an employer from accessing or obtaining login information to an employee’s social media account, the 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.
Because an employer that provides employer-financed social media accounts to employees is not subject to the restrictions of the social media statute, employers should strive to maintain clarity between employer-owned and employee-owned social media accounts. To do this, the employer should protect its access to these accounts by giving employees notice in writing as to which specific accounts are employer-owned. Further, the employer’s social media policy should have clear guidelines for the following:
- Intended goals of the company’s social media account;
- What company information may be disclosed on the company’s social media account; and
- A transition plan for employer-owned social media accounts in case an employee who has had primary responsibility for an account leaves the company.
As to employee-owned accounts, Washington’s social media statute generally 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”; or (3) allow the employer to view the employee’s or applicant’s personal social media account (i.e., the employer may not look 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, such as by changing the privacy settings in a way that allows a third party or the public to view the account. There are, however, some narrowly drawn exceptions to the statute with which employers should be familiar.
As part of the law, 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 statutes. Employers must tread carefully, since a current or prospective employee is provided with a private right of action against any employer that violates the social media statute (including a right to recover attorney fees, if successful).
In short, while an employer that provides employer-financed social media accounts to employees is generally not subject to the restrictions of the social media statute, employers should be careful about requesting or requiring information related to the private social media accounts of employees and prospective employees. And most importantly, employers should ensure that their social media policies conform with the social media statute.
Joseph Vance and Kathryn Rasmussen are employment litigation attorneys in Miller Nash Graham & Dunn’s Vancouver office. They can be reached by email at joseph.vance@millernash.com or kathryn.rasmussen@millernash.com or by phone at 360.699.4771. For more info, visit www.millernash.com.
