California Law Protects Employees’ Social Media Privacy
October 8, 2013
In the past, employers commonly used social media to get a glimpse into the behaviors of their applicants and monitor any possible employee misconduct. In recent years, however, employers have had a much more difficult time accessing information about their employees online as social media users began utilizing strict privacy settings on their profiles.
To get around these privacy settings, many employers were requesting—or demanding—usernames and passwords for their employees’ social media profiles or accounts in order to access their personal information. State legislators across the United States have been recognizing the need to protect employees against this invasion of online privacy. The large majority of states have pending legislation related to online privacy and the Password Protection Act of 2013 has been introduced to the United States House of Representatives on the federal level. California became one of the first states to pass such a law in 2012, and Section 980 of the Labor Code went into effect on January 1, 2013.
How Section 980 Affects Employers
California law now prohibits employers from demanding usernames or passwords for personal social media accounts from applicants or employees. The law states that “social media” is defined as any electronic service or account, or electronic content. This definition includes, but is not limited to:
● Still photographs
● Video blogs
● Instant messages
● Text messages
● Email messages
● Online services or accounts
● Internet profiles on sites such as Facebook, Twitter, LinkedIn, Pinterest, Tumblr, or Instagram
In addition to passwords and usernames, the law also protects any information related to an applicant or employee’s personal social media presence, such as the content of blogs or status messages. Furthermore, under California law, employers may not demand that an applicant or employee access their own social media profile or site in the presence of the employer or a supervisor so that the employer may view the content of the personal social media account. Finally, it is unlawful for an employer to discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an applicant or employee for refusing to produce social media usernames and passwords or to divulge any personal social media content.
When an Employer may Access Social Media
There are two major exceptions to the law, however, that allow employers to access private employee social media accounts under limited circumstances. First, an employer may request that an employee divulge social media information if it is relevant to an investigation of alleged violations of law or other employee misconduct. In this case, the information obtained may only be used for purposes of the investigation and nothing more. Second, employers retain the right to request usernames, passwords, or other information necessary to access any electronic devices issued by the employer, such as computers, PDAs, or company email accounts.
As of now, Section 980 of the Labor Code only applies to private employers, however A.B. 25 is currently making its way through the state legislature and proposes the law also apply to public employers in California. If you believe your employer has unlawfully requested personal social media information or retaliated against you, you should contact Pershing Square Law Firm to help protect your rights.