As we noted a while ago, Oregon recently joined the growing number of states that prohibit an employer from demanding access to an employee’s personal social media account. An Oregon employer may not require an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” Neither may an employer require an employee or applicant to friend, follow, or otherwise connect with it via a social media account, or to permit the employer to “shoulder surf” while the employee is logged in. There are exceptions—business-related social media accounts and workplace investigations are notable ones—but the rule is fairly clear: When it comes to employees’ personal social media accounts, it’s probably best for an employer to keep its distance.
Seems simple enough, right? Maybe, but here in Oregon, we like not to be outdone by our neighbors. So, last week, Governor Kate Brown signed Senate Bill 185, which adds a few interesting tweaks to the “model” approach that most other states (including Oregon) have followed when adopting social media protections for employees.
With that in mind, here are two new things that the bill may soon enable your employees to say:
- “I have the right to be a social media luddite!” Are you just not that into Facebook? If so, you’re in luck, because Oregon employers soon will be prohibited from requiring an employee to create or maintain a social media account as a condition of employment. This new requirement had an interesting genesis: State Senator Brian Boquist, the bill’s sponsor, reportedly heard an anecdote from his wife about a man who applied for a job online and left blank a space that asked for information about his Facebook page. The company’s reaction, according to Mrs. Boquist’s testimony before the Oregon Senate? “Well, get a Facebook [account] and we’ll interview you.”
- “My Facebook page ain’t a company billboard!” The bill also bars an employer from demanding that an employee or applicant permit the employer to advertise on her personal social media account. A “personal social media account” is a social media account that (1) is used solely for “personal purposes unrelated to any business purpose of the employer” and (2) is not provided or paid for by the employer. In practice, this new distinction could prove tricky. Suppose, for example, that an employee of one of Portland’s many fantastic craft breweries publicly indicates on Facebook that she’ll be attending a happy hour sponsored by her employer. Can the employer then require her to invite her Facebook friends to the event, or to “like” a public page devoted to the employer’s beer?
The bill’s amendments takes effect on January 1, 2016. Oregon courts have yet to interpret the old version of the law, and employers likely won’t have definitive judicial guidance on the new version for some time to come. In the meantime, an employer’s safest best remains the same: When it comes to an employee’s personal social media account, proceed with caution.