Oregon enacts law restricting employer access to employees' social media accounts
Legislation follows similar moves in other states
Oregon has enacted legislation that prohibits employers from requesting access to the social media accounts, such as Facebook or Twitter, of their job applicants and employees. The new law, an amendment to ORS 659A, designates such a request as an unlawful employment practice. Specifically, these acts are deemed unlawful employment practices:
- Access - Requiring, requesting, suggesting, or causing applicants or employees to disclose or provide access to a social media account through their user names or passwords;
- Contact List - Compelling applicants or employees to add the employer or an employment agency to a contact list associated with a social media website;
- Reviewing - Compelling applicants or employees to access social media websites in the presence of the employer in a manner that enables the employer to view the contents;
- Discipline for disclosure refusal - Taking, or threatening to take, disciplinary action, including discharge, against employees for their refusal to disclose or provide access to a social media account or to add the employer as a contact to a social media website;
- Not wiring for disclosure refusal - Failing or refusing to hire applicants because of a refusal to disclose or provide access to a social media account or to add the employer as a contact to a social media website.
- Note that the law permits employers to have access to social media accounts, or to otherwise request access to such information, in other ways. For instance, an employer may require employees to disclose user names and passwords for employer-provided or employer-owned social media accounts or the employer’s internal computer or information system.
- The law also permits employers to conduct investigations to comply with applicable laws, regulatory requirements, or work-related employee misconduct rules, based on the employer’s receipt of specific information about an employee’s activity on a personal social media account or service.
- Pursuant to such an investigation, an employer may also request that an employee share content that has been reported to the employer that is necessary for the employer to resolve a factual dispute in such an investigation.
- Moreover, recognizing that a variety of information may be available to the public online, the law also permits employers to discover public information about employees or applicants that is accessible through an online account.
The law takes effect Jan. 1, 2014.
For Oregon School Boards Association members, the months leading up to this law’s implementation provide an opportunity to develop or review policies related to social media and harassment, as well as employment and hiring. Some policy considerations include:
Policy scope and flexibility: The law defines social media broadly, beyond the current popular websites and platforms, to include any electronic medium that allows users to create, share, or view user-generated content through email, the Internet, or other means. Are your policies sufficiently flexible to cover such technological scope and potential advancements?
Ownership: The law identifies personal and employer accounts, but defines and distinguishes neither. Note that your social media account may have a roster of contacts (or friends, followers, etc.) that may fit the definition of a customer list. If the roster meets the definition of a customer list, trade secret laws, such as Oregon’s, provide employers with the right to protect customer lists from use by former employees. If you employ social media accounts, ensure that your policies clearly define scope and ownership.
Hiring and investigations: OSBA members, like all employers, should ensure that their human resources personnel, supervisors, and anyone else involved in hiring decisions or conducting investigations understands this law. The Legislature recognized the challenges employers face from a variety of tort claims, and specifically exempts employers from liability for failing to request or require disclosure of information that may be contained in social media. This protection may go far in insulating employers from a negligent hiring claim, for instance, but it may not protect an employer for failing to follow up on an investigatory tip involving social media in the context of a workplace investigation that results in violence.