5211-S AMH REYK SILV 339

SSB 5211 - H AMD 452

By Representative Reykdal

ADOPTED 04/17/2013

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 49.44 RCW to read as follows:

(1) An employer may not:

(a) Request, require, or otherwise coerce an employee or applicant to disclose login information for the employee's or applicant's personal social networking account;

(b) Request, require, or otherwise coerce an employee or applicant to access his or her personal social networking account in the employer's presence in a manner that enables the employer to observe the contents of the account;

(c) Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the employee's or applicant's personal social networking account;

(d) Request, require, or cause an employee or applicant to alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account; or

(e) Take adverse action against an employee or applicant because the employee or applicant refuses to disclose his or her login information, access his or her personal social networking account in the employer's presence, add a person to the list of contacts associated with his or her personal social networking account, or alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account.

(2) This section does not apply to an employer's request or requirement that an employee share content from his or her personal social networking account if the following conditions are met:

(a) The employer requests or requires the content to make a factual determination in the course of conducting an investigation;

(b) The employer undertakes the investigation in response to receipt of information about the employee's activity on his or her personal social networking account;

(c) The purpose of the investigation is to: (i) Ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or (ii) investigate an allegation of unauthorized transfer of an employer's proprietary information, confidential information, or financial data to the employee's personal social networking account; and

(d) The employer does not request or require the employee to provide his or her login information.

(3) This section does not:

(a) Apply to a social network, intranet, or other technology platform that is intended primarily to facilitate work-related information exchange, collaboration, or communication by employees or other workers;

(b) Prohibit an employer from requesting or requiring an employee to disclose login information for access to: (i) An account or service provided by virtue of the employee's employment relationship with the employer; or (ii) an electronic communications device or online account paid for or supplied by the employer;

(d) Prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations.

(4) If, through the use of an employer-provided electronic communications device or an electronic device or program that monitors an employer's network, an employer inadvertently receives an employee's login information, the employer is not liable for possessing the information but may not use the login information to access the employee's personal social networking account.

(5)(a) An employee or applicant aggrieved by a violation of this section may file a complaint with the department of labor and industries. The department shall investigate the complaint and, if the investigation indicates that a violation may have occurred, hold a hearing in accordance with chapter 34.05 RCW. A finding pursuant to the procedure set forth in this subsection constitutes an exhaustion of administrative remedies.

(b) The department may adopt rules to implement this section, including a rule regarding penalties for violation of this section. Any penalty established by the department for violation of this section may not exceed one thousand dollars for the first violation and five thousand dollars for each subsequent violation.

(6) For the purposes of this section:

(a) "Adverse action" means: discharging, disciplining, or otherwise penalizing an employee; threatening to discharge, discipline, or otherwise penalize an employee; and failing or refusing to hire an applicant.

(b) "Applicant" means an applicant for employment.

(c) "Electronic communications device" means a device that uses electronic signals to create, transmit, and receive information, including computers, telephones, personal digital assistants, and other similar devices.

(d) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or other activity in this state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state, and any municipal corporation or quasi-municipal corporation. "Employer" includes an agent, a representative, or a designee of the employer.

(e) "Login information" means a user name and password, a password, or other means of authentication that protects access to a personal social networking account.

NEW SECTION. Sec. 2. The sum of twenty-three thousand sixty-four dollars, or as much thereof as may be necessary, is appropriated for the fiscal year ending June 30, 2014, from the general fund to the department of labor and industries for the purposes of this act.

NEW SECTION. Sec. 3. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately."

Correct the title.

EFFECT: Strikes the underlying bill and:

· Prohibits an employer from:

o Requesting, requiring, or otherwise coercing an employee or applicant to: (1) disclose login information for his or her personal social networking account; or (2) access his or her account in the employer's presence in a manner that enables the employer to observe the contents of the account;

o Compelling or coercing an employee or applicant to add a person to the list of contacts associated with the account;

o Requesting, requiring, or otherwise causing an employee or applicant to alter the settings on the account that affect a third party's ability to view the contents of the account; or

o Taking adverse action against an employee or applicant because he or she refuses to provide login information, access the account in the employer's presence, add a person to his or her contacts, or alter the account settings.

· Provides that the bill does not apply to an employer's request or requirement that an employee share content from his or her personal social networking account if:

o The employer requests or requires the content to make a factual determination in the course of an investigation;

o The investigation is undertaken in response to receipt of information about the employee's activity on his or her personal social networking account;

o The purpose of the investigation is either: (1) to ensure compliance with laws, regulatory requirements, or prohibitions against work-related employee misconduct; or (2) to investigate an allegation of unauthorized transfer of the employer's proprietary information, confidential information, or financial data; and

o The employer does not request or require the employee to provide his or her login information.

· Provides that the bill does not:

o Apply to a social network, intranet, or other technology platform intended primarily to facilitate work-related information exchange, collaboration, or communication;

o Prohibit an employer from requesting or requiring an employee to disclose login information for access to an account or service provided by virtue of the employment relationship or to an electronic communications device or online account paid for or supplied by the employer;

o Prohibit an employer from enforcing existing personnel policies that do not conflict with the bill; or

o Prevent an employer from complying with requirements of statutes, rules, case law, or rules of self-regulatory organizations.

· Provides that if, through use of an employer-provided electronic communications device or an electronic device or program that monitors an employer's network, an employer inadvertently receives an employee's login information, the employer is not liable for possessing the information but may not use it to access the employee's account.

· Permits an aggrieved employee or applicant to file a complaint with the Department of Labor & Industries (Department). Requires the Department to investigate and hold a hearing if a violation may have occurred. Provides that a finding pursuant to this procedure constitutes an exhaustion of administrative remedies.

· Permits the Department to adopt rules. Provides that a penalty established in rule may not exceed $1,000 for the first violation and $5,000 for subsequent violations.

· Defines certain terms.

· Appropriates $23,064 to the Department for the fiscal year ending June 30, 2014.

· Provides an immediate effective date.

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