Washington’s New Social Networking Legislation
We are waiting on the Governor’s signature for Washington’s “Social Networking Accounts and Profiles Act” to become law. Apparently, the law is the result of some employers using heavy handed tactics, such as threatening termination, to gain access to a restricted social networking account like Facebook.
Before I get into the substance of the law, allow me a little time to vent.
If you are an employer and you have an overwhelming, burning, it keeps you up at night, desire to see your employee’s Facebook, Twitter, Pinterest, Google+, or foursquare account AND that desire is not fueled by a legitimate purpose, such as a concern that proprietary data has been shared with a competitor, you might want to consider counseling. In fact, you should see if you can get a management team discount with a mental health counselor.
If you are an employee and work for a company that wants to access your social networking account so desperately that they are willing to fire you if you don’t allow access, you should look for another place to work because “ain’t nobody got time for that.”
If you are a manager and you feel the overwhelming desire to “friend” a subordinate, get a life. It will only lead to trouble and, most likely, will only be a good thing for the company’s lawyer. Your employee does not want you as their online “friend”. There is a reason we have “work friends” and “home friends.” It’s called privacy, and yes, right or wrong, people like to think their restricted social networking circle is private.
The other reason that you, as an employer, do not want access to a restricted social networking account, through “friending” or any other method, is that you may learn information that could trigger legal duties such as accommodation of, an otherwise unknown, disability. Information may be valuable, but sometimes the price is too high.
Okay, now I feel better. Let’s talk about the law as it currently stands before the Governor (click link below to see the bill text).
Here is what the law prohibits employers from doing to employees or job applicants:
Requiring, requesting or coercing disclosure of login information to a social networking account;
Requiring, requesting or coercing access to a social networking account in the employer’s presence so they can view the contents of the account;
Compelling or coercing the addition of a person to the lists of contacts associated with the employee’s social networking account;
Request, require or cause the addition of a third party to alter account settings to allow a third party to view the contents of the account; or
To take adverse action against the employee or applicant because they refuse to engage in one of the above.
The law does allow exceptions to the rule. For example, if it is necessary to access the account as part of an investigation (such as compliance with applicable law, regulations, or prohibitions against work-related misconduct or to investigate the unauthorized transfer of proprietary, confidential or financial data through the social networking account) or as part of lawful compliance with state and federal statutes or other regulations. The law does not apply to employer social networking sites for which an employee may have an account. Additionally, the legislative recognizes that employees will access social networking sites from work computers, phones, etc. Since these devices leave traces of sites visited, employers are not liable for login or password information left by employees on work devices. (Aka: you login to social media accounts on work property, the company is not responsible if that login info is accessed/ hacked). Even though this data is left on work devices, the employer is prohibited from using it to access the employee’s accounts. So at the end of the day, an employer can insist that an employee permit access to a Gmail account but the employer is not permitted access to a social networking site. Go figure.
The statute creates a cause of action that allows an employee to sue the employer and get an injunction (restraining order), actual damages, a penalty of $500 (the statute is silent on whether this is per violation or per claim) and reasonable attorney’s fees and costs.
Rod’s Take Away:
A. If it feels wrong, don’t do it. If it looks creepy, don’t do it even though it may be legal. Good employers don’t need to coerce people to cough up their private life. They certainly don’t want to know if your relationship status changes from “in a relationship” to “its complicated.” TMI. Good employers attract good employees because of the culture they create.
B. There are enough ways for employers to learn about an employee. I know there are a lot of people reading this who are in their 40’s, 50’s or 60’s that are saying, “Thank God there was no Facebook back in the 60’s 70’s and 80’s because…..(I’ll let you fill in the blank).” Now, deep sigh of relief for being older.
C. Reevaluate you policies to make sure that you don’t have a policy that runs afoul of this new law.
Till next week,