Washington State Enacts Law Restricting Employers’ Access to Private Social Media Accounts

by Davis Wright Tremaine LLP
Contact

Effective July 28, 2013, Washington joined several states in prohibiting employers from seeking access to their employees’ or prospective employees’ private social-media accounts.

Washington’s law, codified as RCW 49.44, specifically prohibits employers from requesting employees’ user names and passwords and substantially restricts when employers may ask employees to reveal the content of such sites.

Restrictions
As such, employers may not:

  1. Request, require, or coerce an employee to disclose login information for a personal social-networking account;
  2. Request, require, or coerce an employee to access his or her account in the employer’s presence so that the employer can observe its contents;
  3. Compel or coerce an employee to add someone as a contact associated with such an account;
  4. Request or require that an employee alter a third party’s ability to access an account; or
  5. Take an adverse action against an employee or applicant for refusing such acts.

What’s Not Restricted
Employers’ access to employer-provided electronic devices (smartphones, laptops, and tablets, for example); online services provided by the employer (including the employer’s intranet, website, Facebook site, and Twitter feed); or social media accounts are not subject to the law’s restrictions. The law also does not prohibit employers from asking for login or content information associated with a network, intranet, or other platform intended primarily for work-related information exchange, collaboration, or communication.

Finally, employers may still demand access the content of their employees’ private social media accounts when conducting certain investigations (although they may never request login information). For example, employers investigating alleged employee violations of state or federal laws, regulations, or employee-conduct rules may access the content of social media accounts. Employers may also access the content of social media accounts to investigate allegations that an employee has improperly transferred the employer’s proprietary or confidential information, or the employer’s financial data.

Inadvertently Receiving Information
Employers are not liable if they inadvertently receive login information via an employer-provided electronic device, but the employer may not use the information to access the employee's account. Beyond restricting employers’ ability to request or coerce from workers access to their private accounts, the new law does not regulate employers’ independent access to content of publicly-available personal accounts.

Right to Sue
The law allows employees or applicants to bring a civil action in state court for alleged violations, and would have the right to seeking an injunction against the employer. Employers that violate the law could be liable for damages, a statutory penalty of up to $500, and the employee or applicant’s attorneys' fees and costs. However, a court may award an employer reasonable expenses and attorneys’ fees if the employer prevails in a frivolous action.

Similar laws in Other States
This kind of legislation may become commonplace. Similar legislation has been introduced in at least three dozen states; Washington is the eighth to state to enact such a law this year, joining Arkansas, Colorado, Nevada, New Mexico, Oregon, Utah and Vermont.

Best Practice
Employers should review their hiring and investigation practices to ensure that employees and applicants are not asked for usernames and passwords for their private social media accounts except in the narrow circumstances recognized under the law. Questions regarding permissible access to social media accounts should be referred to an experienced labor and employment attorney to ensure compliance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP
Contact
more
less

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.