Washington State Joins Trend of New Social Media Laws

by Proskauer Rose LLP

On May 21, 2013, Washington's governor signed SB 5211 into law, making Washington the latest state to prohibit employers from requiring or requesting that prospective and current employees disclose their username and password to their personal social media accounts. Maryland, Illinois, California, Michigan, Utah, New Mexico (which ostensibly applies to prospective employees only), Arkansas, and Colorado have enacted similar laws. A growing national trend, dozens of states and the U.S. Congress are considering similar legislation. To understand the new Washington law, this alert discusses its coverage, prohibitions, exceptions, and remedies.


The new Washington law is expansive in its coverage, defining "employer" to mean any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or other activity in Washington state and employs one or more employees. Moreover, the term includes the state, any state institution, state agency, political subdivision of the state, and municipal corporation (or quasi-municipal corporation), as well as any agent, representative, or designee of the employer.


Pursuant to the new Washington law, an employer may not request, require, or otherwise coerce a current or prospective employee to disclose login information[1] for a personal social networking account, or access his or her personal social networking account in the employer's presence in a manner enabling the employer to observe the contents of the account.

The new Washington law also prohibits an employer from compelling or coercing a current or prospective employee to add a person, including the employer, to the list of contacts associated with the employee's personal social networking account. Additionally, an employer cannot request, require, or cause a current or prospective employee to alter the settings on his or her personal social networking account so as to affect a third party's ability to view the contents of the account.

Moreover, the new Washington law expressly forbids an employer from taking "adverse action"[2] against a current or prospective employee for refusing to engage in any of the acts prohibited under the statute.


The new Washington law does not prohibit an employer from retrieving content stored on an employee's personal social media account when it is necessary (1) to make a factual determination in the course of conducting an investigation; (2) in response to the receipt of information about the employee's activity on his or her account; and (3) to (i) ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or (ii) 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. Note that, even if these conditions exist, an employer cannot request or require the employee's login information.

Additionally, the new Washington law does not apply to a social network, intranet, or other technology platform primarily intended to facilitate work-related information exchange, collaboration, or communication by employees or other workers. Nor does the law prohibit an employer from requesting or requiring that an employee disclose login information for access to an account or service provided by virtue of the employee's employment relationship with the employer, or to an electronic communications device[3] or online account paid for or supplied by the employer.

Moreover, nothing in the new Washington law prevents employers from enforcing existing personnel policies (to the extent such policies stay consistent with the new law), nor from complying with the requirements of state or federal statutes, regulations or rules (rules of self-regulatory organizations), or case law.

Finally, the new Washington law provides that an employer is not liable for possessing an employee's login information inadvertently procured through the use of an employer-provided electronic communications device or an electronic device or program monitoring the employer's network. An employer may not, however, use the login information to access the employee's personal social networking account.


Under the new Washington law, an aggrieved individual may bring a civil action and is entitled to:

  • injunctive or other equitable relief;
  • actual damages;
  • a $500 penalty; and
  • reasonable attorneys' fees and costs (which may be awarded to any prevailing party (such as the employer) upon final judgment and written findings that the action was frivolous and advanced without reasonable cause).


The new Washington law's coverage, prohibitions, and exceptions are similar to the social media laws adopted in other states, as well as the legislation pending in the U.S. Congress and numerous state legislatures. It should be noted, however, that Washington's new law provides more generous remedies than nearly all of its counterparts. As Washington's new plaintiff-friendly law continues this national movement, it is imperative that employers within the state and across the nation navigate with extreme caution when monitoring or seeking to access an applicant's or employee's personal social media account.

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.

© Proskauer Rose LLP | Attorney Advertising

Written by:

Proskauer Rose LLP

Proskauer Rose 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):

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.


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.