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Health & Fitness

Social Media: Washington's New Password Law

You don’t have to be Mark Zuckerberg to see that social media’s popularity and utility increases its use in the workplace. It’s social media's now ubiquitous presence in our lives that perhaps motivated Washington’s Legislature to pass Senate Bill 5211 through both the House and the Senate on April 28, 2013.

That bill, which earned bipartisan support, relates to employment practices and prohibits an employer from requiring any employee or prospective employee to disclose any password in order to gain access to the individual’s personal social networking account. Governor Inslee signed the bill into law on May 30, 2013.

Washington’s new law, to use a social media phrase, is “trending”: according to the National Conference of State Legislatures, Washington State is one of seven states with legislation that prohibits employers or academic institutions “from requesting or requiring an employee, student or applicant to disclose a user name or password for a personal social media account.” The other six states include California, Delaware, Illinois, Maryland, Michigan and New Jersey.

State legislatures are not the only government entity taking on social media issues. The National Labor Relations Board (NLRB) is increasing its efforts to police employers’ social media policies. The NLRB is charged with enforcing Section 7 of the National Labor Relations Act (NLRA), which grants employees, among other things, the right to “form, join, or assist” unions.

In recent years, the NLRB has extended the governance of Section 7 of the NLRA into further reaches of the non-union workplace. Specifically, the NLRB is taking action to protect employees’ rights to complain about their employers on social media websites.

For example, in 2008, a Lakewood, Washington construction contractor fired five employees who appeared in a YouTube video complaining about hazardous working conditions. The NLRB investigated the matter and issued a complaint, citing the contractor’s unlawful coercive action, which dissuaded the employees from exercising their right to organize under Section 7. The matter eventually settled and the employees received full back pay.

More recently, earlier this year, the NLRB targeted a clothing company that fired several employees for complaining about their supervisor on Facebook. The act of using social media as a means of complaining about their workplace conditions, the NLRB concluded, constituted “concerted activity” that was protected under the NLRA. The employer, therefore, could not lawfully terminate the employees for exercising those rights.

The NLRB’s efforts to extend the NLRA’s application to non-union workforces – as evidenced by its rulings over social networking issues – may be why Senate Republicans continue to block President Obama’s appointments to that agency.

President Obama’s administration has, in response, been forced to make several recess appointments. But two federal appellate courts – the third circuit and the D.C. Circuit – have each ruled that President Obama’s recess appointments to the NLRB exceeded his constitutional authority, and those decisions call into question the validity of some NLRB actions taken after those appointments were made. President Obama’s administration petition the US Supreme Court in April 2013 to overturn the D.C. appellate court’s decision.

With Senate Bill 5211 Washington is certainly heading in the right direction if its our state’s aim to protect employees’ use of social media in the workplace. But there are larger disputes brewing over workplace issues: employers are still pitted against their employees, and conservatives are still pitted against liberals. Only time and innovation will tell the currently unknown ways social media will influence and change the workplace. 

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Trent Latta is an attorney who can be contacted at TrentLatta@gmail.com

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