Following the lead of Maryland and Illinois, California is the latest state to stop employers from requesting social media log-in information, such as user names and passwords for Facebook, Twitter, or e-mail, from employees and job applicants. The new law also includes protections from employer retaliation against employees who refuse to provide this personal access information.
Bill AB-1844 broadly defines “social media” to include “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 specifically forbids employers from forcing employees to (1) disclose their username or password for the purpose of accessing personal social media; or (2) access personal social media in the presence of the employer.
The new legislation is not without pro-employer aspects. It does not limit an employer’s ability to discipline an employee or take other action in response to the employee posting defamatory or other untrue comments about the employer. As an exception to the general prohibitions quoted above in the new law, California employers retain their right to demand that an employee divulge her/his personal social media content “reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations.”
But California employers and employers outside California with California-based workers need to tread carefully before requiring an employee to provide access to her/his social media. While the California law may permit the intrusion in limited circumstances, an employer needs to make sure the law permits the “intrusion” in question. In addition, the employer must learn whether the intended search and any resulting discipline is beyond the reach of the National Labor Relations Act as recently “clarified” and arguably expanded the NLRB’s Acting General Counsel. See our earlier alerts on this here and here. Finally, the search may implicate still other federal, state and local laws such as state laws that protect employees from adverse employment actions for engaging in activities that are “not unlawful.”