Employment Law Advisory for October 3, 2012: Social Media Privacy Law Signed By Governor, Will Become Effective on January 1, 2013

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As a result of the explosion in popularity of social media in recent years, employers frequently seek information regarding applicants or employees through various forms of social media. In some instances, information is available from social media websites to anyone who seeks it. In other instances, those seeking information from a social media resource must utilize usernames and/or passwords in order to gain access. Applicants and employees who seek to protect their privacy in social media have objected, albeit often ineffectively, to employers’ insistence on obtaining access to social media to gather information to be used in employment decisions. On September 27, 2012, however, Governor Jerry Brown signed Senate Bill 1349, which generally prohibits California employers from requiring applicants and employees to disclose social media information. 

More specifically, Senate Bill 1349 generally prohibits employers from requiring applicants to (a) disclose their social media usernames and passwords, (b) access social media in the presence of the employer (so-called “shoulder surfing”), or (c) disclose any information posted or stored in social media. The new law defines “social media” as videos, photographs, blogs, instance messages, text messages, email, websites or online accounts, and other web-based profiles. Employers are also forbidden from retaliating against applicants or employees who refuse to disclose protected information in response to an unlawful request. 

Although the prohibitions set forth in Senate Bill 1349 are broad, the new law does permit employers to request access to social media when information in such media is “reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws.” In those circumstances, employers may seek access to social media for the limited purpose of investigating the potential misconduct. In addition, employers may still require disclosure of information needed to access social media associated with electronic devices owned by the employer. 

Interestingly, Senate Bill 1349 does not authorize applicants and employees to file lawsuits against employers who violate the law, and it also expressly excuses the Labor Commissioner from investigation complaints of violations. As such, the remedies available to applicants and employees in the event of a violation remain unclear.

While Senate Bill 1349 regulates employers’ ability to compel disclosure of social media information from applicants and employees, prudent employers will also utilize great care even when social media information regarding an applicant or employee is freely accessible to them. In addition to conveying valuable information which employers can legitimately consider when making employment decisions (such as information regarding a person’s communication skills, judgment and professionalism), social media may also convey a wealth of additional information that employers cannot lawfully consider in making personnel decisions. Social media profiles and postings often reveal information such as a person’s sex, race, marital status and age (or approximate age), and may also convey information regarding one’s religion, sexual orientation, medical condition and political opinions. Employers, of course, cannot consider such information when making employment decisions, and usually obtain only a limited volume of such information in the ordinary course of business. As a result, when employers seek information regarding applicants or employees through social media, they may leave themselves more vulnerable to claims of discrimination than they would be if they relied solely on information obtained through more traditional channels. 

The Equal Employment Opportunity Commission has expressed concern regarding the potential for discrimination arising from the use of video resumes, and the EEOC’s concerns regarding video resumes would seem to apply with equal force to social media. As a result of this risk, we generally recommend that employers not seek information from social media when conducting their initial screening of a pool of applicants. At a minimum, employers should refrain from seeking information from social media until after they have decided to interview an applicant. If an applicant’s social media profiles or postings reveal information regarding matters that might not otherwise be readily apparent in an interview, the employer should be prepared to rebut potential allegations of discrimination by citing legitimate business reasons for not hiring the applicant.

Senate Bill 1349 will become effective on January 1, 2013. In light of the law’s passage, employers should review existing policies and practices to assure that they comply with the provisions of the law, and should make any changes necessary to avoid violations. If you have any questions about Senate Bill 1349 or any other issue relating to employment law, please contact one of our attorneys:

Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Karen Reinhold
Erik P. Khoobyarian
Shirley Jackson