As we noted a while ago, Oregon recently joined the growing number of states that prohibit an employer from demanding access to an employee’s personal social media account. An Oregon employer may not require an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” Neither may an employer require an employee or applicant to friend, follow, or otherwise connect with it via a social media account, or to permit the employer to “shoulder surf” while the employee is logged in. There are exceptions—business-related social media accounts and workplace investigations are notable ones—but the rule is fairly clear: When it comes to employees’ personal social media accounts, it’s probably best for an employer to keep its distance.

Seems simple enough, right? Maybe, but here in Oregon, we like not to be outdone by our neighbors. So, last week, Governor Kate Brown signed Senate Bill 185, which adds a few interesting tweaks to the “model” approach that most other states (including Oregon) have followed when adopting social media protections for employees.Continue Reading Oregon Legislature to Employers: Stay Out of Employees’ Personal Social Media Accounts!

Recently, an interesting debate has erupted in the employment law blogosphere over this National Law Journal piece cautioning employers about the risks posed by making recommendations on LinkedIn — a social networking website for professionals.  The perceived danger scenario is where a manager “recommends” the work of a subordinate, who is later terminated for poor performance.  The former employee then sues, and uses the manager’s “recommendation” as evidence that the stated reason for the termination (poor performance) is a pretext.  The debate over this issue centers on the true risk to employers of LinkedIn recommendations—some say the risk is real; others that it is overblown.

Our good friends Molly DiBianca of the Delaware Employment Law Blog and Daniel Schwartz of the Connecticut Employment Law Blog argue that the risk is overblown.  First, they point out that this scenario has played out in exactly zero cases to date.  Second, because managers are extremely unlikely to recommend poor performers, this scenario is unlikely to occur frequently.  Jon Hyman of the Ohio Employment Law Blog and Patrick Smith of the Iowa Employment Law Blog disagree and argue that employers should be concerned about such recommendations because people tend to be careless on the internet, and a LinkedIn recommendation can provide a crushing blow to the employer’s chances of prevailing on summary judgment in litigation.

So who’s right?Continue Reading LinkedIn Debate Highlights Broader Issue of Inflated Performance Evaluations