by Brian J. Trowbridge
Introduction
California Labor Code § 980 became effective January 1,
2013. The new law provides specific
protection for employees and applicants regarding their private social media
accounts. However, there are limitations
and employees should be careful about their social media activities and
presence.
Protections
The statute defines “Social media” broadly, 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.”
Specifically, the new statute prevents an employer from
requiring or requesting an employee or job applicant to (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.
The employee is also protected from discharge, discipline,
threats of discipline, or other retaliation by the employer for not complying
with a request or demand that violates these protections.
Limitations
The new statute does not prevent employers from exercising
their existing rights and obligations regarding an investigation of an
employee’s misconduct or an employee’s violation of laws or regulations, as
long as the Social media content is used only for purposes of investigation or
the related proceeding.
Additionally, the statute allows for an employer to require
or request disclosure of passwords or usernames for employer-issued electronic
devices.
Conclusions
Section 980 provides some clarity in the relatively new, and
constantly changing, world of social media and technology. Employers are using social media to screen
potential employees and to supervise existing ones. Under this new law, an employer cannot
request or force an employee to give access, to access in front of, or to
divulge Social media information to the employer absent some investigation
related to a specific violation of laws or policies. However, an employer can likely access public
social media information of its employees and applicants, but the employer
probably cannot use this information if it relates to some protected status
under existing law.
The law does not specify what is defined as an
employer-issued electronic device. Many
employers offer to split costs on smart phones and their service plans so that
the employee can use the phone for work and personal use and not have to carry
two phones. Thus, there will likely be
litigation or future legislation on this issue.
To date, there is still little analysis or published case
law discussing the reach or limitations of California Labor Code § 980. However, this is likely to change as social
media continues to grow in size and importance in our society.
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