I first wrote about Oregon’s social media law when HB 2654 was passed by the Senate in May 2013.

A year later, Dan Webb Howard has penned an interesting article for the May 2014 issue of the Oregon State Bar Bulletin, “A Cure Worse than the Disease? Oregon’s New Social Media Law.”

The idea behind HB 2654 was to protect the social media privacy rights of employees and job applicants.  But as Howard describes, the law may have unintended consequences:

The “Employer Account” Exception

Social media accounts that are “provided by” or “used on behalf of the employer” are an exception to the non-disclosure provisions of HB 2654.  Howard points out that the exception is “so broadly worded that it could have the perverse effect of forfeiting an employee’s control over personal information contained in a social media account that he or she created.”

Employees Cannot be Compelled to Permit “Shoulder Surfing” or add the Employer as a Social Media Contact

Next Howard discusses the meaning of the term “compel.”  HB 2654 fails to provide a definition, which opens the door for speculation.  Why does this matter?  Because two of the key provisions of the law prohibit compelling employees or applicants to (a) add the employer as a social media contact or (b) access password protected social media content in the presence of the employer.

When are “Supervisors” also “Employers” under HB 2654?

The last murky detail concerns vicarious liability for actions of supervisors.  Howard suggests preparing for the worst-case scenario: “that even the lowest-level supervisor might ultimately be deemed an ’employer’ for purposes of HB 2654.”

Read the Hypotheticals and Suggested Solutions

Throughout the article, Howard provides a series of hypotheticals to illustrate his points.  He also offers spot-on advice for employees and employers.  Read the full article here.