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  • The 2013 regular session of the Legislature adjourned on April 28th, although, because a budget agreement was not reached, Governor Jay Inslee has called a special session to begin on May 13th. 

SB 5211, which prohibits various employer actions regarding an employee or applicant’s social network account is the only bill which passed involving Human Resource/employment law issues. Specifically, the Act:

  • Prohibits an employer from requesting, requiring, or otherwise coercing an employee or applicant to disclose login information for the employee or applicant’s personal social networking account, access his or her personal account in the employer’s presence, require the employee or applicant to “friend” the employer, request or require the employee or applicant to alter privacy settings to make his or her personal account visible, or take adverse action against an employee or applicant for refusing to go along with any such requests.
  • Employers are allowed to require an employee to share content from a personal account if the employer requires the content to make a factual determination in the course of an investigation, the investigation is undertaken in response to information about the employee’s activity on his or her personal account, the purpose of the investigation is limited to ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related misconduct; or to investigate an allegation of unauthorized transfer of an employer’s proprietary information, confidential information or financial data to the employee’s personal social networking account, and the employer does not require the employee to provide login information.
  • The law excludes work-related social networks, intranets, accounts or services that are company-provided or paid for or supplied by the employer, nor does the law prohibit employers from enforcing existing personnel policies that are not in conflict with the law, or with complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations.   
  • The law prohibits an employer from using an employee’s login information it obtains inadvertently via its monitoring of employer’s network.
  • The law creates a new civil cause of action for an employee or applicant aggrieved by a violation of any of these requirements and provides for actual damages, injunctive and equitable relief, a $500 penalty, and the award of attorney’s fees and costs.
Comment:  I do not believe the law is necessary with respect to the vast majority of employers who do not seek access to an employee account absent a significant and valid business interest.  My primary concern with legislation of this type is that the legislation should take into consideration those rare circumstances where an employer has a valid, business related basis to access an employee’s social media account, for example, if an employee is using Facebook or other social media to sexually harass another employee or otherwise violate the law or Company policy.  Unfortunately, I have concerns whether SB 5211 sufficiently protects those interests.  While SB 5211 allows an employer to require an employee to “share content from his or her personal social networking account” for the valid business reasons set forth above, the law does not define how this process will work and, for example, it is unclear how the employer can guarantee that the employee will provide all of the legally relevant content because the law prohibits an employer to require production of login information even when an employee is required to “share content.”  Finally, while SB 5211 allows an employee or applicant to sue the employer for a violation of this Act, unlike most employment laws, SB 5211 allows the employer to recover attorney’s fees and expenses if a court finds that an employee or applicant brought a frivolous lawsuit without reasonable cause.

 

 


 

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