Recent Trends of Social Media Law and the Workplace Environment – Washington State Law (RCW 49.44)

Social Media use in the workplace has become a topic of much discussion in Corporate America and beyond. The legal landscape of Social Media in the workplace continues to evolve and to take Legislative shape at State level(s). Technology has created challenges for Employers due to Employee’s ever increasing use of Social Media and communication based technology. My intention here, albeit very brief, is to provide but one example of a State level (Washington) Legislative evolution for a National/International audience of readers and students.

Can Employees be compelled, by State Law, by an Employer to share Social Media related personal information? Or, what can’t Employers ask Employees to share? Are individual privacy rights addressed?

In the State of Washington, effective July 28, 2013, per evolving Public Employee Labor Law, RCW (Revised Code of Washington) 49.44, now prohibits Employers in the State of Washington from:

1. Requesting, requiring or otherwise coercing an Employee (OR Prospective Employee) to disclose Login information for her/his personal Social Networking Account.

2. Requesting, requiring or otherwise coercing an Employee (OR Prospective Employee) to access her/his personal Social Networking Account in the Employer’s presence in a manner that enables the Employer to observe the contents of the Account.

3. Compelling or coercing an Employee (OR Prospective Employee) to add a person, including the Employer, to the list of contacts associated with her/his personal Social Networking Account.

4. Requesting, requiring, or causing an Employee (OR Prospective Employee), to alter the settings on her/his personal Social Networking Account that affects a third party’s ability to view the contents of the Account.

5. Taking adverse action(s) against an Employee (OR Prospective Employee) because she/he refuses to disclose her/his Login information, access her/his personal networking account in the Employer’s presence, add a person to the List of contacts associated with her/his personal Social Networking Account or, alter the settings on her/his personal Social Networking Account that affects a third party’s ability to view the contents of the Account.

To the contrary, RCW 49.44 does not prohibit Washington Employers from requesting or requiring an Employee to share content from her/his personal Social Networking Account if the following conditions are met:

1. Requesting or requiring content (but not Logins) of a Social Networking Account to make a factual determination in the course of conducting an investigation.

2. Undertaking an investigation in response to receipt of information about the Employee’s activity on her/his personal Social Networking Account.

Note: The purpose of the investigation is to: (1) Ensure compliance with applicable laws, regulatory requirements, or prohibitions against work related employee misconduct or (2) 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.

3. {Per (1) above} The Employer does not request or require the Employee to provide her/his Login information. However, this section does not prohibit an Employer from requesting Login information or content based information which is related to a work related Network. Note: An Employer is not prohibited from requesting or requiring an Employee to disclose Login information for access to (1) An account or service provided by virtue of the Employee’s employment relationship with the Employer (2) An electronic communications device or online account paid for or supplied by the Employer (eg. laptop or mobile phone). Note: A work related Network can be 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.

A pertinent legal issue arises here. Should an Employer contravene Washington State Law, then it is possible that an Employee (OR prospective Employee) may have Civil recourse and this could result in Litigation. In addition, it is also possible that an Equitable remedy can be sought against the Employer; an Injunction. Furthermore, Employer’s who violate this Statute could be held Civilly liable and, ordered to pay associated money damages and, the Employee’s (OR prospective Employee’s) associated Legal fees and costs as so determined and/or ordered.

A important “take away” is that, in the evolving field of Social Media Law, regarding attempting to mitigate potential adverse legal consequences, Employers should increasingly and carefully scrutinize their Company Social Media Policy (this includes the drafting and/or subsequent amending of such Policy), and their employment practices per Compliance. Both Employers and Employees should become immediately apprised of State level Legislative developments, in their associated jurisdiction(s).

The Social Media Bus is perpetually moving forward…can the Law ever board this Bus in a timely manner?

Note (not only for Attorneys in the audience): For further background Legislative reading please also refer to RCW 49.44.200 and RCW 49.44.205: Personal Social Networking Accounts – Restrictions on Employer Access – Definitions.

Disclaimer: The preceding Article is for informational purposes only, does not constitute legal advice and, is not to be misconstrued as offering legal advice. There is no Attorney – Client relationship formed. If you seek legal advice, please consult with a licensed Attorney forthwith in your associated jurisdiction.

About the Author:
Kalvin N. Joshi Esq., J.D., has been a Faculty Member in the College of Business at Washington State University for 14 years. He is a Clinical Associate Professor of Business Law and International Law. He is a Fellow of the International Business Institute. He is licensed to practice Law and admitted to the following Bar Memberships both domestic and international: State of Washington (Attorney), State of New York (Attorney and Counselor at Law) and the Province of Alberta, Canada (Barrister and Solicitor). He has practiced Law for over 17 years while representing numerous clients.

He is an active member of the Washington State Bar Association (WSBA), New York State Bar Association (NYSBA) and the Law Society of Alberta (Canada). He is a member of the American Bar Association (ABA) and several ABA sub-sections including Business Law, International Law, Intellectual Property and Global Anti-Corruption. He is a member of the International Practice sections and Corporate Counsel sections of both (NYSBA) and (WSBA). He is a member of the World Jurist Association (WJA). He is a member of the American Immigration Lawyers Association (AILA) National and State of Washington Chapters.

He is admitted to practice before: The United States Supreme Court (Washington, DC), The United States Court of International Trade (New York, NY), The United States Court of Appeals for the Federal Circuit (Washington, DC), The Ninth Circuit Court of Appeals (San Francisco, CA), The Federal District Court for the Eastern District of Washington (Spokane, WA), all Washington State Courts, all New York State Courts, all Provincial (Alberta) and Canadian Federal Courts.