New Washington Law Bars Employers from Requesting, Requiring or Coercing Employees or Applicants to Disclose Social Media Login | Practical Law

New Washington Law Bars Employers from Requesting, Requiring or Coercing Employees or Applicants to Disclose Social Media Login | Practical Law

Washington recently enacted Substitute Senate Bill 5211 (SSB 5211), which prohibits an employer from requesting, requiring or otherwise coercing an employee or applicant to disclose login information associated with a personal social networking account.

New Washington Law Bars Employers from Requesting, Requiring or Coercing Employees or Applicants to Disclose Social Media Login

by PLC Labor & Employment
Published on 28 May 2013 • Washington
Washington recently enacted Substitute Senate Bill 5211 (SSB 5211), which prohibits an employer from requesting, requiring or otherwise coercing an employee or applicant to disclose login information associated with a personal social networking account.
On May 21, 2013, Washington Governor Jay Inslee signed into law Substitute Senate Bill 5211 (SSB 5211). Under SSB 5211, an employer may not:
  • Request, require, compel or otherwise coerce an employee or applicant to:
    • disclose login information for the employee's or applicant's personal social networking account;
    • access his personal social networking account in the employer's presence in a manner that enables the employer to observe its contents;
    • add a person, including the employer, to the list of contacts associated with the employee's or applicant's personal social networking account; or
    • alter the settings on his personal social networking account affecting a third party's ability to view the contents of the account.
  • Take adverse action against an employee or applicant for refusing to engage in any of the acts prohibited under the new law.
The Washington law does not prohibit an employer from requesting or requiring that an employee share content from his personal social networking account if the following conditions are met:
  • The employer requests or requires the content to make a factual determination in the course of conducting an investigation.
  • The employer undertakes the investigation in response to receipt of information about the employee's activity on his personal social networking account.
  • The purpose of the investigation is to either:
    • ensure compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct; or
    • 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.
  • The employer does not request or require the employee to provide his login information.
SSB 5211 also does not:
  • Apply to a social network, intranet or other technology platform intended primarily to facilitate work-related information exchange, collaboration or communication by employees or other workers.
  • Prohibit an employer from requesting or requiring an employee to disclose login information for access to:
    • an account or service provided by virtue of the employee's employment relationship with the employer; or
    • an electronic communications device or online account paid for or supplied by the employer.
  • Prohibit an employer from enforcing existing personnel policies that do not conflict with this new law.
  • Prevent an employer from complying with the requirements of:
    • state or federal statutes;
    • rules or regulations;
    • case law; or
    • rules of self-regulatory organizations.
Finally, if, through the use of an employer-provided electronic communications device or an electronic device or program that monitors an employer's network, an employer inadvertently receives an employee's login information, the employer:
  • Is not liable for possessing the information.
  • May not use the login information to access the employee's personal social networking account.
Washington is the ninth state to enact a law prohibiting private employers from asking for access to social media accounts, joining Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Mexico and Utah. For more information on state laws addressing employer access to current and prospective employees' social media accounts, see Practice Note, Employer Access to Social Media Accounts State Laws: Overview.