You Are Not Your Employees’ “Friend”: New Washington Law Restricts Employer Access to Employees’ Social Media Activity

Are you curious about what your employees, or applicants for employment, might be saying or doing on Facebook and other social media sites?  As of July 28 of this year, that curiosity will have to remain largely unsatisfied, thanks to a new Washington State law that severely restricts an employer’s ability to access or view their employees’ social media activity.  The law applies to all employers in Washington State, regardless of size.

So, What Can’t You Do?

Under the new law, employers cannot:

  • Request, require or coerce an employee or applicant to disclose the login information for social networking accounts;
  • Request, require or coerce an employee or applicant to actually access his or her social media accounts such that the employer can observe its contents;
  • Compel or coerce an employee to “friend” someone or otherwise make someone a contact in the employee’s social media group (e.g., coworkers, management, clients, etc.); and
  • Request or require an employee to alter a third party’s ability to access the account.

And, of course, employers are restricted from retaliating against an employee or applicant for refusing an employer’s request or requirement that would violate the law.   If an employer violates this new law, the employee or applicant has the right to file suit in civil court and recover up to $500 in statutory penalties, as well as compensation for actual damages, injunctive relief and attorney’s fees and costs.

What Does the Law Permit?

The law’s restrictions apply to an employee’s or applicant’s personal, private social media accounts, and an employer can never require or request an employee or applicant to provide the employer with login information for such accounts.  Notably, even if the employer inadvertently discovers an employee’s login information, the employer is restricted from using that information to access the employee’s account.   Under a very narrow exception, an employer may require the employee to provide the content of the employee’s social media accounts as part of an investigation into potential unlawful activity, work-related misconduct, or misappropriation of the employer’s confidential information.  Notably, however, the employer must first have received a tip that the employee has used his or her social media account to engage in the illegal or improper conduct.  For example, an employer who receives a tip that a supervisor has posted discriminatory comments about an employee may require the supervisor to provide the content of the social media account as part of the employer’s investigation of the alleged discriminatory conduct.  Again, keep in mind that the employer may never request, require or use login information for such accounts, however.

What Should You Do Next?

Be sure to review your hiring practices and social media policies to ensure that you are not requesting or requiring applicants and employees for information prohibited by this new law.  And, as always, consult with employment counsel before requesting or requiring an employee to provide you with the content from such accounts, to ensure you remain in compliance.

If you have any questions on this, or any other employment law issue, please contact our Employment team.  Of course, you can always contact any member of the Retail, Hotel & Restaurant team; we’re happy to help.