Social media in the workplace: What is California’s AB 1844?

Social media in the workplace can be a double-edged sword. On one hand, employers seek to restrict its use by employees. On the other, employers are finding that it can be a great tool in employment screening. But where does public data cross privacy boundaries? What can and can’t California employers do when it comes to utilizing social media in the workplace to make hiring decisions?

Social media in the workplace is getting legal attention in the state of California. In September 2012, Governor Jerry Brown signed into law a bill that restricts employers, including private organizations and universities and colleges within California, from requiring or requesting an employee or applicant to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media accounts. This is the general purpose of Assembly Bill 1844 (AB 1844).

With these new regulations on the table, it’s crucial for California employers to understand how to walk the line between monitoring employee behavior and respecting privacy rights.

Social media in the workplace: What is California’s AB 1844?

Under the new law (AB 1844), social media is defined as an:

“[E]lectronic 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”

“Interestingly it also includes text messages and email within its definition of social media, which is not something we would traditionally define as social media.” Jessica Anne Luke outlined in a recent CER webinar. This is an important distinction that outlines the reach of the legislation.

The law states that an employer shall not require or request an employee or applicant for employment to do any of the following:

1. Disclose a username or password for the purpose of accessing personal social media.
2. Access personal social media in the presence of the employer. (This is sometimes called “shoulder surfing,” where the employer’s representative is looking over the shoulder of the employee while the employee accesses his or her social media accounts).
3. Divulge any personal social media, except as specifically outlined in the law.

There are some exceptions to this rule, however. The law goes on to state that:

• Nothing in this section shall affect an employer’s existing rights and obligations to request 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.
• Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
• An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse employment action against an employee or applicant if otherwise permitted by law.

This bill went into effect on January 1, 2013. The Labor Commissioner is charged with enforcement, but is not required to investigate. There is no private right of action, but there are lots of other ways employees can use laws like these, such as a wrongful termination claim.

Social media in the workplace is becoming an increasingly important issue. California employers need to stay informed of the latest legal developments to ensure their policies are in alignment.

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 Jessica Anne Luke is an associate in the employment practice group in Lewis Brisbois Bisgaard & Smith’s San Francisco office. Her practice focuses on employment litigation and employment counseling. Ms. Luke has represented employers in all aspects of employment law and litigation, including, wrongful termination, harassment, discrimination, retaliation, and wage & hour.