New Labor Code section 980, effective January 1, 2013, generally precludes employers from requiring or asking employees or job applicants to disclose their user names or passwords, or to provide access to, or divulge “personal social media.” The definition of social media is broad, and includes “videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” Nothing in the statute defines “personal.” There will likely be a number of cases concerning which “social media” is personal and which is business-related. In the interim, employers should be cautious in seeking any social media unless it is essential to an investigation or it is clearly work-related.
There are two major exceptions in the statute. First, an employer may require an employee to divulge user names and passwords to access an employer-issued device. Second, an employer may require an employee to provide access to or divulge the information if it is “reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations . . . .“ The employer must limit its use of the information to the investigation. Even if one of these exceptions appears applicable, employers should think carefully before requesting access to personal social media without the advice of counsel. In the absence of a clearly stated employment policy, employees may still have privacy rights in information contained on employer-issued devices. Further, there are a number of restrictions on employer investigations governed by other statutes, such as (for most employers) investigations as to whether the employee has been arrested or detained if the employee was not ultimately convicted. See, Cal. Labor Code § 432.7.
This law arose in response to media reports of a practice some employers followed requiring applicants and employees to provide account names and password to social media accounts such as Facebook, Twitter, and MySpace. Supposedly, employers used the information as part of their background check for applicants and to monitor employee conduct. This practice was always problematic, because it could result in the inadvertent disclosure of information that employers are prohibited from inquiring about, including sexual orientation.
Again, the California Legislature’s failure to clearly define the terms “social media” and “personal” will make those questions hotly litigated, and clear guidance for employers will have to wait until the courts or the Legislature clarify what is permissible.