Social media in the workplace: Does California prohibit online background searches?

Legislation surrounding the use of social media in the workplace is a growing concern for California employers. “There are probably more questions than answers at this point. We predict that the rise in litigation – particularly in California – around these social media rules and regulations is really going to take off in the next year to 5 years.” Lisa Barnett Sween outlined in a recent CER webinar. She was referencing the recent implementation of Assembly Bill 1844 (AB 1844), which just went into effect on January 1, 2013.

Legislating social media in the workplace: How Does California’s AB 1844 relate to background checks for applicants?

AB 1844 states that a California employer cannot request or require an applicant to:

• Provide log-in information
• Access their social media websites in the employer’s presence (over-the-shoulder viewing)
• Divulge any personal social media

This leaves us several examples of employer conduct that could be potentially prohibited by the new law, such as:

• Asking an existing employee who is “friends” (on social media) with an applicant to show you the applicant’s social media information
• Requiring an applicant or employee to list social media accounts (this may fall under the prohibition of requiring employees to divulge social media information)
• Asking an applicant to “friend” the interviewer to allow the employer to see their information
• Searching archives for formerly-public information that has now been made private

With these restrictions, does this mean that California employers cannot use social media at all during the hiring process? Actually no. Employers are able to search publicly-available information. In fact, this is a tool commonly used by HR professionals and hiring managers. Social media sites like Facebook, LinkedIn, and Twitter are commonly searched before making a hiring decision. Employers are looking for things like:

• Provocative or inappropriate photos
• Evidence of the candidate drinking or using drugs
• Poor communication skills
• Bad mouthing previous employers
• Discriminatory comments
• Lies about qualifications

Many of these things are – unfortunately for applicants – readily available online. There is a potential pitfall for employers, however. Looking at social media sites sometimes inform the employer whether the applicant is a member of a protected class. If such information is discovered and a negative employment action is taken, there is then exposure for the possibility of discrimination-based claims.

Legislating social media in the workplace: How Does California’s AB 1844 relate to monitoring existing employees?

Just like it does for applicants, AB 1844 states that an employer cannot request or require an employee to:

• Provide log-in information
• Access their social media websites in the employer’s presence (over-the-shoulder viewing)
• Divulge any personal social media

However, employers have several legitimate business reasons for employee monitoring in general. In fact, in some instances, employers may have an affirmative duty to take remedial action based on online conduct (such as online harassment of co-workers). In addition, inappropriate conduct may expose employers to reputational harm and legal liability.

This seeming contradiction of legitimate employer needs and restrictions creates as many questions as answers. Here are some examples of the types of situations that could cause confusion:

• Employer monitoring of publicly-available information is likely okay, but the viewing of private social media information – even on a company-owned device – is likely not okay.
• However, when employees use social media on a company device, there may be instances where the employer has a legitimate business purpose to search the social media.
• What should employers do when the rules overlap? For example, what if an employee installs a Facebook application on the company’s phone. Is that considered private? What if it is not password protected?
• What about information discovered through “friending” between supervisors and employees?
• How far can an employer go to prohibit social media speech when trying to protect the employer’s reputation? The NLRB has already said that an employer cannot limit contact between co-workers; where is the line drawn?

This information is just a sample of what is covered under AB 1844. California employers need to be aware of the new legislation, as it just went into effect January 1, and is already affecting social media in the workplace.

The above information is excerpted from the webinar “Social Media in California: New Access Restrictions and Policy Obligations for Employers.” To register for a future webinar, visit CER webinars.

Attorney Lisa Barnett Sween is a partner in the employment practice group in Lewis Brisbois Bisgaard & Smith’s San Francisco office. Since 1997, Ms. Sween has represented employers in all aspects of employment law and litigation, including state and federal employment harassment and discrimination litigation, wrongful discharge litigation, FMLA, CFRA, ADA, and wage & hour litigation.