New California Law Gives Employees and Job Applicants Greater Social Media Use Protections

by Wilson Sonsini Goodrich & Rosati
Contact

Last month, California became the third (and largest) state to regulate employer access to the social media accounts of applicants and employees. The law, A.B. 1844, will take effect on January 1, 2013, and is intended to protect California employees and applicants from “unwarranted invasions of their personal social media accounts.” However, when the California legislature tries to solve one employment problem it can create several others, and A.B. 1844 contains many undefined and unclear provisions that create potential landmines for California employers.

Background

We have seen a renewed legislative interest in some employers’ practice of asking their employees and applicants to divulge social media passwords, permitting employers to review social media profiles for suspicious or inappropriate activity. The media, advocacy groups, legislators, and the general public have refocused attention on the subject—an area that implicates individual privacy rights and the limits of an employer’s ability to access the social media information of its current and prospective employees. Before California’s passage of A.B. 1844, both Maryland and Illinois passed similar laws regulating employer access to applicant and employee social media account information. 

The recent increase in interest can be traced partially to a 2010 incident in which the Maryland Division of Corrections demanded Facebook log-in credentials from a corrections officer, Robert Collins, following his return from leave. Mr. Collins was not, however, the first employee to be subject to such a request by a government agency. Since 2006, the sheriff’s office of McLean County, Illinois, has requested social media log-in information from all job applicants. In 2009, the city of Bozeman, Montana, required all applicants to provide social media log-in information (a practice it has since discontinued).  In 2011, a Michigan teacher’s aide was fired when she refused to provide her employer with her Facebook log-in information, including her password.

Earlier this year, Facebook issued a statement condemning the practice of requesting social media log-in information from job applicants, stating in part, “This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.” In addition, Facebook has made it a violation of the company’s Statement of Rights and Responsibilities to share or solicit a Facebook password. In line with this cautionary note from Facebook, many employer attorneys have counseled against this practice. Nonetheless, the California legislature has decided to create a legislative “solution” to a problem that may not have been a widespread one in California to begin with.

California’s New Law – A.B. 1844

A.B. 1844 prohibits an employer from requiring or requesting 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; or (3) divulge any personal social media information, except as provided for in the bill. The law clarifies that employers’ existing rights and obligations to request personal social media information remains intact if that information is reasonably believed to be relevant to an investigation of allegations of employee misconduct or an employee’s violation of applicable laws and regulations, and only if the social media is used solely for purposes of that investigation or a related proceeding. A.B. 1844 does allow employers to require or request a username, password, or other method of accessing an employer-issued electronic device. The law also prohibits any discharge, discipline, threat to discharge or discipline, or other retaliation against an employee who fails to provide information requested in violation of the law.

Open Issues under A.B. 1844

California’s new law does not address many important areas and, as a result, creates potential pitfalls for employers, including the following:

  1. “Bring Your Own Device” Policies. A.B. 1844 specifically allows employers to require or request an employee to disclose a username, password, or other information for the purpose of accessing an employer-issued electronic device. However, the line between an employer-issued device and a personal device connected to the employer’s information systems is becoming blurred. Indeed, many companies have enacted so-called “bring your own device” (BYOD) policies that enable employees to use personal devices for professional purposes as a company policy. In addition, employers often permit their employees to use their own electronic devices to connect to company networks or other electronic systems. It is not unusual, for example, for an employee to use his or her smartphone to access work email or other network services. Depending on what constitutes an “employer-issued” device under A.B. 1844, employers may not have access to those personal devices. This ambiguity could be especially problematic if, for example, an employer is required to comply with a “litigation hold” or a discovery request in litigation, but is not able to retrieve or preserve the necessary information.
  2. Investigation of Employee Misconduct/Violation of Applicable Laws. A.B. 1844 allows an employer to require or request social media credentials if it reasonably believes them to be relevant to an investigation of employee misconduct or an employee’s violation of applicable laws and regulations, but only if the social media is used solely for purposes of that investigation or a related proceeding. The statute’s language is not clear as to who can be asked for social media credentials, whose social media can be reviewed, and what relation that social media use must have to an investigation in order to meet the requirements of the law. For example, if an employer investigates allegations of trade-secret theft, fraud, or sexual harassment by Employee A, can the employer ask Employee B for Employee B’s social media credentials to monitor or review Employee A’s online behavior? Or is the employer limited to asking Employee A for Employee A’s credentials? Additionally, this exception for the use of social media is limited to only two types of investigations: (1) employee misconduct and (2) employee violation of an applicable law or regulation. One can imagine other scenarios in which an employer might wish to review employee social media for reasons that may not rise to the level of these exceptions, including insubordination or even poor performance. Seeking social media credentials for such uses, however, likely is complicated by California’s law.
  3. Incongruity of Defined Terms. A.B. 1844 defines “social media” as “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.” Essentially, any online activity—including email—is considered social media for the purposes of the statute. However, the statute does not define “personal social media,” which is the type of social media protected throughout the statute. Consequently, employers are left somewhat in the dark as to what is restricted by the prohibitions on requiring an applicant or employee to “access personal social media in the presence of the employer” or “divulge any personal social media,” except as otherwise provided in the statute. The legislation also leaves unanswered what “personal” means when social media blends into the increasingly popular forms of web-based business-related networking. For example, recently an employer had to defend its action to take control of a social media account that the company claimed it owned from a terminated employee who had used the social media account as her own. Such cases underscore the need for clear, written policies establishing ownership of such business-related social media accounts, and they also indicate that the ambiguity created by California’s new law could have very real consequences.

Conclusion

What is clear following California’s passage of A.B. 1844 is that the social media landscape continues to evolve in the employment context. Competing interests exist. Employers often wish to inspect and monitor social media activity as it relates to matters affecting the workplace. Employees, on the other hand, have certain reasonable expectations of privacy and do not believe an employer may encroach on territory deemed personal. The National Labor Relations Board’s recent activity and ruling regarding social media policies speaks to yet other interests at play (e.g. those interested in preserving concerted activity) with respect to the use of social media in the workplace. California’s statute demonstrates that states are not waiting for employers or the federal government to act with respect to the practice of requesting social media credentials from applicants and employees. Employers therefore must act cautiously and prudently as they address the increasing number of social media issues arising in the workplace, especially with respect to the policies and practices dealing with social media use.

Wilson Sonsini Goodrich & Rosati is following developments around the country with respect to social media law. Attorneys in the firm’s employment and trade secrets litigation group are available to discuss or review social media policies and related practices, as well as other employment policies. For more information, please contact Fred Alvarez, Rico Rosales, Marina Tsatalis, Laura Merritt, Charles Tait Graves, or another member of the firm's employment and trade secrets litigation practice.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Sonsini Goodrich & Rosati | Attorney Advertising

Written by:

Wilson Sonsini Goodrich & Rosati
Contact
more
less

Wilson Sonsini Goodrich & Rosati on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.