New Law Prohibits Employers from Asking Employees or Applicants from Disclosing Social Media Pages

On September 27, 2012, Assembly Bill 1844 was signed into law. The bill—now codified in Labor Code section 980—prohibits employers from requiring or requesting an employee or applicant to disclose a personal social media page. The statute defines “social media” as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”

The law was passed in response to several news stories describing employers who requested access to applicants’ social media accounts during the interview process. A companion law was also passed by the Legislature in 2012 (Senate Bill 1349) which prohibits postsecondary educational institutions from asking students or prospective students to disclose, access, or divulge personal social media. SB 1349 is now codified at Education Code sections 99120–99122.

Nevertheless, Labor Code section 980 contains two significant exceptions in which employers may direct an employee to provide access to personal social media. First, an employer may direct an employee to divulge personal social media “reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.” Second, the employer may direct an employee to disclose a username and password necessary to access an employer-issued electronic device. (Labor Code § 980 at subd. (c), (d).) Similarly, Education Code section 99121, at subdivision (c)(1) provides that SB 1349 does not affect a “public or private postsecondary educational institution's existing rights and obligations to protect against and investigate alleged student misconduct or violations of applicable laws and regulations.”

On December 3, 2012, Assembly Bill 25 was introduced. AB 25 proposes to amend Labor Code section 980 making the statute specifically applicable to a public employer by adding the following subdivision: “(a)(1) ‘Employer’ means a private employer or a public employer.” AALRR will continue to follow the progress of AB 25 and any legal developments which may further clarify these new social media laws.

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