Home > Business Law > AB 1844 / Labor Code Section 980 – Places Restrictions on Employers’ Access to Social Media of Employees/Applicants

AB 1844 / Labor Code Section 980 – Places Restrictions on Employers’ Access to Social Media of Employees/Applicants

Social media – like Facebook, Twitter, Google+, etc. all can provide a wealth of information about a person’s true extracurricular activities.  Photos can show daily activities or likes.  Status updates show locations and whereabouts.  Indeed, some social media applications even have GPS trackers pinpointing exact locations.  These social media sites have for obvious reasons served as an enticing alternative for employers who wish to engage in background checks and monitor employee conduct.  Perhaps that has come to an end.

Effective January 1, 2013, the recently codified Labor Code section 980 (former AB 1844) will prohibit an employer from requesting a job applicant or employee for access to his or her social media, except in limited circumstances.  Section (b) of the new statute provides that an employer may not “require or request” a job applicant or employee 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.

The meaning of this third rule against asking an employee to “divulge any personal social media” is far from clear.  Because divulge is used in a very general sense, and not with respect to any specific information, “divulge” apparently means telling the employer which types of accounts the employee has (e.g. Facebook versus Twitter).  However, contrast that to the Legislative history materials, including the California Senate’s analysis, that suggest that “divulge” means to disclose specifically the username and password of an account.  Since this is a newly enacted law, it will be some time until the courts interpret it.  Until then, employers should be careful not to inquire into an employee’s social media practices altogether.

The Legislature did not provide for any specific penalties for violating this new law.  As such, enforcement could fall back under under the Labor Code Private Attorneys General Act, which could allow an aggrieved employee to file a civil lawsuit, to receive a specific penalty amount, and to obtain an attorney’s fee award.

All Rights Reserved © 2013 by Michael L. Mau, Esq. & The Mau Law Firm

 

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