Arkansas, Colorado & Washington Workplace Social Media Privacy Laws

Arkansas, Colorado & Washington Workplace Social Media Privacy Laws
Marketing Director

Last summer, I reviewed a couple of states' social media legislation regarding sex offenders. 2013, however, has seen a fast-moving trend in state-level social media laws that directly affect employers. Arkansas, Colorado and Washington are the latest states to implement workplace social media privacy laws this past April and May. As of June 5, 2013, there are nine states with social media workplace privacy laws in place, which also include Maryland, Illinois, California, Michigan, Utah, and New Mexico. According to an alert by Proskauer, dozens of states and the U.S. Congress are considering similar legislation. Workplace social media privacy laws are clearly an emerging trend across the United States, but what do these laws mean for employers? Here's a breakdown of the three latest, which all include exceptions for the employer under special circumstances. 

Arkansas

On April 22, 2013, Arkansas' Governor signed HB 1901 into law. The Arkansas law prohibits employers from requiring or equesting any of the following from current or prospective employees:

  • Disclose his/her username or password for a social media account
  • Add a co-worker "to the list or contacts associated" with the account
  • Change his/her account privacy settings

Fortunately for employers, the Arkansas legislation provides some exceptions for Human Resources departments should the need to access social media accounts arise. As Eric B. Meyer of the Employer Handbook states, the Arkansas law:

“Allows employers to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee’s social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employers of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies.”

Colorado

On May 11, 2013, Colorado's Governor signed HB 13-1046 into law. Colorado's new law makes three restrictions to employer's access of employee and applicant social media accounts:

  • No requests for social media user names and passwords
  • No forced-friending or requiring that the employer be added as a contact
  • No requiring that privacy settings be changed

Similar to Arkansas, Colorado also includes a few exceptions that allow employers to obtain full access to an employee or applicant's social media account. Employers can access an employee's social media account if the employee is believed to have downloaded proprietary information. Additionally, employers are permitted access to satisfy "applicable securities or financial law or regulatory requirements."

The Colorado law also allows the employee or job applicant to file a complaint with the Department of Labor and Employment, which has the authority to impose a fine of up to $1,000 for a first offense, and not more than $5,000 for subsequent offenses.

Washington

On May 21, 2013, Washington's Governor signed SB 5211 into law. Washington prohibits employers from requesting or requiring job applicants or current employees to:

  • Disclose login information from a personal social media account
  • Add a person, including the employer, to the social media accounts contact list
  • Alter the social media account's settings to affect a third party's ability to view its contents

Additionally, Washington's new law prevents an employer from taking "adverse action" against current employees or job applicants refusing to comply with any of the acts prohibited under the legislation.

While Washington's law allows employers to access content stored on an employee's social media account under certain conditions, employers are not permitted to request login information. Thus, employers are allowed access to the content if necessary to:

  • Determine facts while conducting an investigation
  • Respond to information about the employee's activity on his or her account
  • Comply with applicable laws, regulatory requirements or regulations against work-related employee misconduct

Furthermore, the Washington law does not apply to a social network or another technology platform primarily intended for work-related use nor does it prohibit employers from requesting login information for such an account or service.

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