Employer Access to Personal Social Networking Accounts (WA State)

Under Washington State laws, may employers access their employees' personal social networking accounts? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITIONS

For purposes of this article (including RCW 49.44.200, and RCW 49.44.205), the following definitions apply:

(a) "Adverse action" means: Discharging, disciplining, or otherwise penalizing an employee; threatening to discharge, discipline, or otherwise penalize an employee; and failing or refusing to hire an applicant.

(b) "Applicant" means an applicant for employment.

(c) "Electronic communications device" means a device that uses electronic signals to create, transmit, and receive information, including computers, telephones, personal digital assistants, and other similar devices.

(d) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or other activity in this state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state, and any municipal corporation or quasi-municipal corporation. "Employer" includes an agent, a representative, or a designee of the employer.

(e) "Login information" means a user name and password, a password, or other means of authentication that protects access to a personal social networking account.

RCW 49.44.200.

PERSONAL SOCIAL NETWORKING ACCOUNTS: EMPLOYER PROHIBITIONS

Under Washington State laws, an employer is prohibited from engaging in any of the following concerning their employees' personal social networking accounts:

(1) An employer may not:

(a) Request, require, or otherwise coerce an employee or applicant to disclose login information for the employee's or applicant's personal social networking account;

(b) Request, require, or otherwise coerce an employee or applicant to access his or her personal social networking account in the employer's presence in a manner that enables the employer to observe the contents of the account;

(c) Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the employee's or applicant's personal social networking account;

(d) Request, require, or cause an employee or applicant to alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account; or

(e) Take adverse action against an employee or applicant because the employee or applicant refuses to disclose his or her login information, access his or her personal social networking account in the employer's presence, add a person to the list of contacts associated with his or her personal social networking account, or alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account.

Id.

EXCEPTIONS TO EMPLOYER PROHIBITIONS

Employers are not subject to the above prohibitions--in requesting or requiring that an employee share content from their personal social networking account--under the following conditions:

… 

(a) The employer requests or requires the content to make a factual determination in the course of conducting an investigation;

(b) The employer undertakes the investigation in response to receipt of information about the employee's activity on his or her personal social networking account;

(c) The purpose of the investigation is 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; and

(d) The employer does not request or require the employee to provide his or her login information.

Id. There are additional limitations beyond the above exceptions.

LIMITATIONS

Washington State law provides limitations concerning personal social networking accounts in the workplace. The relevant section makes the above prohibitions inapplicable under the following circumstances:

…  

(3) This section does not:

(a) Apply to a social network, intranet, or other technology platform that is intended primarily to facilitate work-related information exchange, collaboration, or communication by employees or other workers;

(b) Prohibit an employer from requesting or requiring an employee to disclose login information for access to:

(i) An account or service provided by virtue of the employee's employment relationship with the employer; or

(ii) an electronic communications device or online account paid for or supplied by the employer;

(c) Prohibit an employer from enforcing existing personnel policies that do not conflict with this section;

(d) Prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations; or

(e) Apply to a background investigation in accordance with RCW 43.101.095. However, the officer must not be required to provide login information.

Id. Occasionally, employers inadvertently obtain employee login information for personal social networking accounts; there is a statutory provision for this occurrence as well.

INADVERTENT DISCLOSURE

If an employer accidentally obtains an employee's login information through the use of an employer-provided electronic communications device or an electronic device or program that monitors an employer's network, the employer is not responsible for having the information but is prohibited from using the login information to access the employee's personal social networking account. See id.

VIOLATONS: CIVIL ACTION (REMEDIES)

Lastly, employees or applicants aggrieved by a violation of RCW 49.44.200 can bring a civil action in court wherein the court may proceed as follows:

(1) Award a prevailing employee or applicant injunctive or other equitable relief, actual damages, a penalty in the amount of five hundred dollars, and reasonable attorneys' fees and costs; and

(2) Pursuant to RCW 4.84.185, award any prevailing party against whom an action has been brought for a violation of RCW 49.44.200 reasonable expenses and attorneys' fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.

RCW 49.44.205. 

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group; please see our DISCLAIMER.

–gw