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By Kyle Abraham
Under current law, an Oregon employer may require employees and applicants to provide access to their personal social media accounts, but that is likely to change very soon. On May 16, 2013, Oregon Legislature passed House Bill 2654 ("HB 2654"), which would make it an unlawful employment practice for employers to require an employee or applicant to provide the employer access to the individual's personal social medial account, request the individual access the account in the employer's presence or direct an employer to add the employer as a contact or friend. HB 2654 also prohibits employers from disciplining employees for refusing to provide access to personal social medial accounts and grants employees or applicants the right to file a lawsuit against the employer for violations of the law.
HB 2654 identifies certain circumstances under which an unlawful employer practice does not arise. First, if an employer receives a complaint of harassment or other employee misconduct, an employer may investigate the complaint by directing an employee to share content from a personal social media account, so long as the complaint indicates that a social media account is somehow involved. Even under these circumstances, the employer is still prohibited from demanding unfettered access to the personal social media account. Second, separate from any investigation, if an employee's or applicant's social media account allows members of the public to view their full profile, an employer is free to access the social media account. Lastly, employers are not liable for unlawful employment practice for inadvertently receiving information that would provide access to a personal social media account. This may be possible, for example, if an employer is monitoring the usage of an employee's Internet activity during work time on the employer's network.
Even with these specific guidelines, HB 2654 is likely to present several challenges for employers. For example, HB 2654 defines social media very broadly to include any electronic medium that allows users to create, share or view user-generated content through email, the Internet, or other means. Based on this definition all electronic content or activity on the Internet is included, not just an individual's Facebook page, Twitter feed, or LinkedIn account, and will likely result in unintended consequences. Second, HB 2654 defines social media accounts as either personal or employer accounts; but the bill fails to define a personal account versus an employer account. The ownership of social media accounts is a hotly litigated topic. Most disputes about the ownership of social media surround the question of whether LinkedIn contacts, Facebook friends, or Twitter followers fit the definition of customer lists. If the contacts are customer lists, trade secret laws provide the employer with the right to protect customer lists from use by former employees. If an employer expects to benefit from an employee's use of social media, such as networking via LinkedIn, the employee should be instructed to establish a new social media account for business purposes with an agreement that the account belongs to the employer.
In advance of HB 2654 becoming law, employers should review their social media policies and add a statement of intent to comply with HB 2654.