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:
●
Videos
●
Still photographs
●
Blogs
●
Video blogs
●
Podcasts
●
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.
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