Almost half the states (including California) have laws either stating that employers cannot ask employees for access to their personal social media accounts, or somehow restricting employers from gathering social media employee information (see a list of states here; plus the newly passed law in Maine).
But of course, it’s not quite that simple …
Under California law, for example, “social media” is defined as an electronic service, account, or content, including videos, photographs, blogs, podcasts, instant messages, text messages, emails, online services, and Internet Web profiles (surprising that even texts are included in that list!). Calif. Labor Code §980(a). Essentially, an employer cannot request to monitor an employee’s personal social media accounts or ask an employee to log-in in front of them.
However, this law doesn’t apply when the employer has an otherwise lawful reason to request social media account information in order to undergo any independent, legitimate investigation. Calif. Labor Code §980(c). An employer can also require passwords to access an employer-issued electronic device (phones, computers, etc.), but that’s only for the login credentials to unlock the device itself. Calif. Labor Code §980(d).
Oregon also includes a provision that an employer cannot force an employee or applicant to accept their friend or contact request. O.R.S. §659A.330(1)(b). It also has a catch-all provision, which states that if an employer inadvertently receives the login credentials to a personal social media account, they are not liable as long as they do not act on that information. O.R.S. §659A.330(6).
What’s more, in 2015, Oregon Legislators are examining whether to enact a law that makes it unlawful for employers to require employees to create personal social media accounts for the purpose of promoting the employer. Senate Bill 185, 78 Oregon Legislative Assembly.
It can get complicated, however, when an employee uses social media to promote a company’s brand as part of their job, and it is unclear whether their account is part of the employee’s personal brand, or the company’s brand. In the Harvard Business Report, Soumitra Dutta defines a “personal social media account” as one where you keep touch with your friends and family (private) and being passionate about ideas and want to share them with the others (public), and a “professional social media account” is one where you collaborate with your colleagues (private) and where you want to grow professionally through social media (public).
But … what if being a “social media personality/persona” is part of an employee’s job?
The Northern District of California got a taste of this in the case of PhoneDog v. Kravitz. The court had a tough time figuring out which party actually owns the social media, even though it was part of the employee’s job. The court hinted that a company’s Twitter followers could be a trade secret (note from Elizabeth: that would have been a bizarre holding, since Twitter followers are publicly disclosed information). The case settled before the court could make a final ruling, leaving the question of law undecided. In the end, the former employee, Noah Kravitz, changed the handle and password to his own name, @noahkravitz.
On one hand, it seems unfair for a company like PhoneDog, which relies on consumer-generated content, to be denied followers that originally followed Mr. Kravitz’s account solely because of his association with PhoneDog. On the other hand, it would be unfair for Mr. Kravitz to be denied the account, because the Twitter account was a product of his hard work, it was tied to both the company name and his personal persona, and absent an agreement, the industry standard at the time was to allow former employees to change their otherwise corporate profile names to personal names post employment.
The lesson to learn from the PhoneDog case is that if employees are engaging with your customers on social media, make sure the ownership of the account is clear.
Oregon has specifically addressed this issue. Under Oregon law, an employer may require an employee to disclose login credential for a social media account that is provided by or behalf of the employer (O.R.S. §659A.30(2)). Until the rest of the states catch up with Oregon, the best practice for keeping control over your company social media accounts is to implement proper employment agreements and social media policies, as part of your administrative and employment policies.
See PhoneDog v. Kravitz No. C 11-03474 MEJ, 2011 WL 5415612, at *1 (N.D. Cal. Nov. 8, 2011).