When I started law school in 1996, I had never sent or received an email.
When I met my husband in 2004, text messaging didn’t exist (or if it did, I certainly didn’t know about it).
When my daughter was born in 2006, I had never heard of Facebook.
My point is to illustrate how quickly technology has evolved in the last 20 years.
On the other hand, lawyers and law makers take FOREVER to get anything done.
This combination (technology advancing rapidly while legislation and rules pertaining to technology take forever) is simply a recipe for disaster.
Until recently, if you lived in Oregon, your employer could (and often would) require you to provide your log-on credentials for your private social media sites.
I can only imagine what my husband’s boss would have done had he seen the incredibly funny, slightly drunken, Seattle Seahawks Superbowl victory dance that I felt compelled to post on Facebook. It would not have been pretty.
Thankfully, as of January 1, 2014, my husband no longer has to worry about this because Oregon has become the tenth state to enact a law prohibiting employers from accessing their employees’ private social media sites.
If you are an employer, here’s what you can’t do:
- You can’t force or even ask an employee to provide you access to their personal social media accounts;
- You can’t force or even ask an employee or potential employee to be added as a friend or contact on their account;
- You can’t force or even ask for an employee or potential employee to access their social media account in front of you;
- You can’t retaliate or threaten to retaliate against an employee or potential employee for not providing you with access to their private social media accounts.
But here are a few exceptions:
- If you as the employer provided the social media account or if the account is to be used on behalf of the employer (e.g., a marketing person tweeting on the business’ Twitter account), you get access;
- If you as the employer have specific knowledge that an employee’s social media site contains unlawful work-related misconduct (oh I don’t know, let’s say one employee shows you a picture of another employee doing a line of coke on the CEO’s desk afterhours), you may be allowed to ask the employee to provide some of their social media documents. BUT YOU STILL CAN’T ASK THEM TO PROVIDE THEIR USER NAME OR PASSWORD.
A final friendly warning to all employees: Public information on social media is fair game. If there is a picture of you doing a keg stand naked and that picture is date-stamped on a date you called in sick, well good luck.
And if you don’t believe this could happen, I will close by sharing a story about my beloved big brother (let’s call him Al). Many years ago, Al decided to call in sick to his job so that he could attend a major league baseball game with his buddies. They had great seats. Such great seats that the following day, there was a picture of Al on the front page of the newspaper cheering for his team as a player slid into home base.
Al was fired. Immediately.