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Effective Jan. 1, 2014, Oregon employers will be subject to a new social media-related employment law. House Bill 2654 prohibits employers from requesting an employee’s or applicant’s social media username or password, requiring an employee or applicant to add the employer to his or her social media contacts, compelling an employee or applicant to access a personal social media account in front of the employer, or retaliating against an employee or applicant for refusing to do these things.

The new law defines “social media” broadly to include “an electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations.” In other words, social media includes at least all of the usual suspects: Facebook, YouTube, Twitter, Instagram, LinkedIn and so on.

Under the new law, employers may access an employee’s or applicant’s social media page to ensure “compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based on receipt by the employer of specific information about activity of the employee on a personal online account or service.” The new law also clarifies that an employer is not liable for inadvertently obtaining an employee’s private social media passwords as long as it does use the information to “access the personal social media account of the employee.”

Notwithstanding the prohibitions under House Bill 2654, Oregon employers should inform employees what kinds of work-related information they may (and may not) publish on personal websites, blogs, wikis, social networks, online forums, virtual worlds, or any other kind of social media (such as Twitter). At a minimum, an employee handbook should notify employees that they:

• Must state in clear terms that the views expressed on any social media network are the employee’s alone and that they do not necessarily reflect the views of the employer;

• Are prohibited from disclosing information on any social media network that is confidential or proprietary to the employer or to a third party that has disclosed information to the employer;

• May not make statements about the employer, co-workers, clients, competitors, or any other person or entity that are harassing, threatening, libelous, or defamatory;

• Cannot act as a spokesperson for the employer, post comments as a representative of the employer, or provide job references or endorsements on behalf of the employer for any person or product;

• May not use social media to harass, discriminate or create a hostile work environment.

However, employers should remain mindful that this area of law is evolving. The National Labor Relations Board has repeatedly decided that employer social media policies that are too restrictive may violate Section 8(a)(1) of the National Labor Relations Act, which generally prohibits employers from interfering with, or restraining, employees’ rights to engage in “concerted activities.”

Concerted activities are those in which two or more employees act together in furtherance of matters of mutual interest, such as employee compensation, benefits or improving workplace conditions. With respect to social media, a concerted activity can include employees communicating on Facebook about their pay or working conditions.

Employers should therefore avoid implementing a social media policy that prohibits employees from discussing work or disparaging the employer, or otherwise leads them to reasonably believe they are restricted from engaging in concerted activities. Most recently, the Fourth Circuit Court of Appeals ruled that “liking” something on Facebook is a form of speech protected by the First Amendment.

All of this means that Oregon employers need to engage in a balancing act between adopting and enforcing a social media policy that both protects their business and protects their applicants’ and employees’ rights.

Jeff Brecht is an attorney with Portland law firm Sussman Shank LLP and a member of its litigation and labor and employment law groups. Contact him at 503-243-1652 or [email protected].