Oregon Law Delivers an Extra Measure of Employee Autonomy in Social Media

Personal social media accounts can be a pitfall for unwary employees and a temptation for overzealous employers. Often employees reveal information in the social media that employers are prohibited from considering when making hiring or employment-related decisions. For example, employees’ social media posts may disclose protected personal characteristics such as age, health or family status. They may reveal personal views on things like politics, race, or religion. Their posts may expose activities that are embarrassing, inappropriate or even illegal. They may even gripe about work or their boss.

Concerns for employees’ privacy and protected legal rights has led to the proliferation of state laws that prohibit employers from requesting or requiring employees to provide their employers with passwords to their personal social media accounts such as Twitter, Linked-in and Facebook. In fact, 21 states have employee password protection laws with more states considering such legislation.

This summer, Oregon took its employee password protection law to a new level. The law was amended to prohibit employers from requiring an employee or applicant to establish or maintain a personal social media account, and prohibit employers from firing or disciplining an employee for refusing to do so. The law also bars an employer from demanding that an employee or applicant permit the employer to advertise on a personal social media account. The amendment does not take effect until January 1, 2016 and has yet to be tested in court.  However, employers should expect that it also prohibits compelled endorsements, linking, liking, friending, following or connecting with other users. It is probable that other states will follow Oregon’s lead in prohibiting employers from using employee’s personal network for business-related purposes.