Last Week, State of Washington Governor Jay Inslee signed SB 5211 into law, which prohibits employers from requiring or requesting that prospective or current employees disclose their username and password to their personal social media accounts. Washington State now joins a growing list of states (Maryland, California, Illinois, Michigan, Utah, New Mexico, Arkansas, and Colorado) who have enacted similar laws. In general, laws that prohibit disclosure of social media passwords to employers are designed to protect the privacy of the individual and prevent potential retaliatory action based on the individual’s social media use.
Additionally, SB 5211, known as, Washington’s Employer Social Networking Law, prohibits the employer from compelling or coercing an employee or applicant to (1) add the employer to their social networking network; (2) accessing, in the presence of an employer, their personal social networking account in a manner that allows the employer to observe the content of the account; or (3) alter the settings of the account to enable third party’s to view the content of the account.
Exceptions to SB 5211 allow employers to retrieve content from an employee’s social networking account when trying (1) to ascertain factual information over the course of an investigation; (2) undertake an investigation in response to information about an employee’s social media activity; or (3) to ensure compliance with (i) applicable laws, regulatory requirements, and work-related employee misconduct, or (ii) an investigation into the unauthorized transfer of company mission-critical information (i.e. proprietary information, confidential information, financial data, etc.). Moreover, the law allows for employers to enforce existing personnel policies; comply with federal statutes, regulations, and rules; nor does it apply to technology that is intended for work-related information exchange, collaboration, or communication by virtue of the employee’s relationship with the employer.
Damages for violation of SB 5211 include injunctive relief, actual damages, a penalty in the amount of $500, and reasonable attorneys’ fees and costs