RECENT LAW PROTECTS AN EMPLOYEES SOCIAL MEDIA

Facebook, Twitter, Myspace, and other personal social media seem to play a role in the majority of news topics these days. Many are attracted to social media because it provides a way to share private information, philosophies, photos, reviews of everything from travel to restaurants, and countless other aspects of one's personal life.

Given all of that, it is not difficult to see the attraction this type of media presents to employers, particularly those who seek to conduct background checks, research potential employees, monitor employee conduct, and so on. Assembly Bill 1844 (codified as California Labor Code ยง 980), effective January 1, 2013, now prohibits an employer from requesting that a job applicant or employee provide access to his or her social media, except in limited circumstances. An employer is also prohibited from discharging or disciplining, threatening to discharge or discipline, or retaliating against an employee or applicant for failing to comply with any request made by the employer violating these rules.

The statute expressly provides that an employer may not "require or request" a job applicant or employee to do any of the following:

  • Disclose a username or password for the purpose of accessing personal social media;
  • Access personal social media in the presence of the employer; or
  • Divulge any personal social media.

The exceptions to this statute are carefully carved out. For instance, the legislature created an exception for employers who issue electronic devices to employees. When such employers need access to these devices and they are protected by a password known only to the employee, employers are not prohibited from requesting the password under these circumstances. This provision is in accord with a long line of case law holding that employees have increasingly fewer privacy rights when employer-issued electronics and/or other devices are involved.

The next exception was carved out to assist bona fide investigations where the information sought is reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws or regulations, provided that the social media/information is used solely for these purposes.

As with any new law, it will be interesting to see how courts interpret the language in this statute, in regard to both the employer prohibitions and the available exceptions.

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