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On May 22, Gov. John Kitzhaber signed into law a bill prohibiting Oregon employers from requiring or requesting that employees or job applicants provide access to personal social media accounts, add the employer to their social media contact lists, or allow the employer to view their personal social media accounts.

The new law also prohibits employers from disciplining employees for refusing to provide access to personal social media accounts, and grants employees or applicants the right to file a lawsuit against the employer for violations of the law. Oregon is the 10th state to pass such a bill.

The law identifies certain circumstances wherein an employer would not commit an unlawful employment practice regarding access to employees’ or applicants’ social media accounts. First, an employer may investigate a complaint of harassment or other employee misconduct and direct an employee to share content from a personal social media account, but only if the complaint indicates that a social media account is involved. This does not give the employer carte blanche to demand unfettered access, however. The employer’s request must be narrowly tailored to meet the needs of the investigation.

Second, separate from any investigation, if an employee’s or applicant’s social media account allows members of the public to view his or her full profile, an employer is free to access the person’s account.

Finally, it is not an unlawful employment practice under the new law for an employer to inadvertently gain access to a personal social media account while monitoring the employee’s Internet activity on the employer’s network during work time.

The new law presents some unanswered questions for employers. “Social media” is defined very broadly under the law to include any electronic medium that allows users to create, share or view user-generated content through email, the Internet or other electronic means.

Ownership of social media accounts is a developing area of law. Does a customer list belong to the company or the departing employee when it exists on the employee’s LinkedIn contact list, Facebook page, Twitter account or even Outlook? Do trade secret laws apply? Does the employer have the right to protect customer lists and other proprietary information?

The new law may create as many questions as it answers. In the meantime, employers are advised to review their social media policy and include a statement of intent to comply with the new law.

EEOC settles first GINA case

The Genetic Information Nondiscrimination Act was debated in Congress for 13 years as scientists worldwide worked to complete the mapping of the human genome. On Nov. 21, 2009, six years after the human genome project was completed, GINA finally became law.

Last month, nearly four years after GINA became law, the Equal Employment Opportunity Commission settled its first lawsuit involving a discrimination claim based on an applicant’s genetic history.

In its lawsuit, the EEOC charged that a large fabric distribution company violated GINA when it asked a clerk applicant for her family medical history in its post-offer medical examination. The EEOC also claimed that the employer violated the Americans with Disabilities Act when it rescinded the job offer, alleging that it was because it regarded her as having carpal tunnel syndrome (CTS).

The post-offer medical exam included a questionnaire that asked the applicant to disclose the existence of medical conditions – including heart disease, cancer, tuberculosis, hypertension, diabetes, arthritis and mental disorders – within her family. The applicant also was subjected to further medical evaluations to determine whether she suffered from CTS.

After the company withdrew its job offer, the applicant made a written request for reconsideration, emphasizing that she did not have CTS; however, the company did not respond.

Under GINA, it is illegal for employers that employee 15 people or more to discriminate against employees or applicants because of genetic information including family medical history. The law also restricts employers from requesting, requiring or purchasing such information. Likewise, the ADA prohibits discrimination against qualified individuals with disabilities, or individuals who are incorrectly regarded as having disabilities.

The lawsuit and settlement were filed at the same time on May 7, in a federal court in Oklahoma. The company agreed to pay the applicant $50,000 and take specified actions designed to prevent any future discrimination. Officials will post an anti-discrimination notice to inform employees, distribute anti-discrimination policies to employees, and provide anti-discrimination training to employees with hiring responsibilities.

“Employers need to be aware that GINA prohibits requesting family medical history,” said David Lopez, General Counsel of the EEOC. “When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis.”

Howard Rubin is a shareholder in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or [email protected].

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or [email protected].