Effective July 28, 2013, Washington became the eleventh state to have a law prohibiting employers from, among other things, asking its personnel for the user names and passwords to employee social media accounts. The law does have some limited exceptions, including allowing employers to retrieve content from an employee’s personal social media account in the context of an investigation into an employee’s misconduct, or if an employee is accused of making unauthorized transfers of proprietary information. Even then, however, employers can only access the information if it’s provided by the employee voluntarily.
Washington’s law is among the most comprehensive of the collective body of states’ law on this subject, in both the breadth of its application and its exceptions. For example, some states allow an employer to require employees to accept a “friend” request from their employer and to request to view site content “over the shoulder” of an employee—not Washington. Some states allow employers to request that employees change their privacy settings—not Washington. Washington is, however, one of only four states to allow self-regulatory organizations to access employee sites if required to comply with applicable laws or regulations, and one of five states to provide an exception allowing employer access to investigate unauthorized downloading of employer information.
Comparing Washington’s law to those of other states underscores that there is not a consistent body of laws in this country on which multi-state companies can rely for guidance. Identifying and establishing policies that are compliant with the most restrictive law of the states in which a company operates is a safe approach, unless and until passage of a preemptive federal law. In the meantime, with over a dozen more states queued up to pass similar legislation, keep a close eye on this landscape. It is also crucial to not lose sight of the fact that none of these various state statutes address the myriad of issues that employers face when they grapple with how they can use (for purposes of hiring, discipline, and termination) information lawfully discovered from an employee’s social media site.
