On May 22, 2013, Governor John Kitzhaber signed into law House Bill, 2654. This law makes Oregon the tenth state to enact a law prohibiting employers from accessing employees’ private social media sites. The new law becomes effective January 1, 2014 and makes it an unlawful employment practice for employers to compel employees or applicants to provide access to their personal protected social media accounts.
“Social media” is defined under the law to include any electronic medium that allows users to create, share or view user-generated content through email, the internet or other means, including but not limited to, uploading and downloading videos, still photographs, blogs, video blogs, podcast, instant messages, electronic mail or Internet website profiles or locations. The definition also includes standard social media, Facebook, Twitter and LinkedIn, as well as the bulletin board sites like Pinterest and Instagram. The definition also includes email accounts.
There are a couple instances where an unlawful employer practice does not arise.
- If an employer receives complaint of harassment or other employee misconduct, an employer may investigate the claim by directing an employee to share content from the personal social media account as long as the complaint indicates that a social media account is somehow involved. The employer is still prohibited from demanding full access to the full personal social media account.
- If an employee’s social media account allows members of the public to view their full profile, an employer is free to access the social media account.
- If an employer inadvertently gains knowledge of an employee’s access information by monitoring usage of the employer’s network or employer-provided devices, the employer is not liable for having the information if they do not use it to access the employee’s personal social media accounts.
Please make sure you review your social media policies before January 1, 2014 to make sure they comply with this law and that all individuals involved in supervising or hiring are trained. If you have any questions, please contact our office.