California Social Media Privacy Law AB 1844 Prohibits Employers from Demanding Usernames and Passwords from Applicants and Employees

On September 27, 2012, California Governor Edmund G. “Jerry” Brown Jr. announced that he had signed Assembly Bill 1844 (AB 1844) to increase privacy protections for social media users in the state by prohibiting  employers from demanding usernames, passwords, and information related to social media accounts such as Facebook from employees and job applicants. The new law also bans employers from firing or disciplining employees who refuse to divulge the information. The full text of California Assembly Bill 1844 (AB 1844) is at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB1844&search_keywords=.

“The Golden State is pioneering the social media revolution and these laws will protect all Californians from unwarranted invasions of their personal social media accounts,” Governor Brown stated in a press release announcing the signing that is available on the Governor’s website at http://gov.ca.gov/news.php?id=17759.

Introduced by Assembly member Nora Campos (D-San Jose), AB 1844 covers “social media” that includes videos, photographs, blogs, podcasts, text messages, e-mail, online accounts, and website profiles. However, AB 1844 does not apply to information used to access employer-issued electronic devices and is also not intended to infringe on the existing rights and obligations of employers to investigate workplace misconduct. The new law, as amended, reads:

SECTION 1.

Chapter 2.5 (commencing with Section 980) is added to Part 3 of Division 2 of the Labor Code, to read:

CHAPTER 2.5. Employer Use of Social Media

980.

(a) As used in this chapter, “social media” means 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.

(b) An employer shall not require or request 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. (3) Divulge any personal social media, except as provided in subdivision (c).

(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

SEC. 2.

Notwithstanding any other provision of law, the Labor Commissioner, who is Chief of the Division of Labor Standards Enforcement, is not required to investigate or determine any violation of this act.

Governor Brown also signed Senate Bill 1349 (SB 1349), introduced by Leland Yee (D-San Francisco), which establishes a similar privacy policy for postsecondary education students with respect to their use of social media by prohibiting universities from requiring that students, prospective students, and student groups to disclose user names, passwords, or other information about their use of social media.

California now joins Maryland and Illinois as the only states that currently prohibit employers from requiring job applicants and employees to disclose social media information. As reported on the ESR News blog in April 2012, Maryland passed the first law in the nation to prohibit employers from asking for social media user names and passwords as a condition of employment when both Houses of the General Assembly approved two social media privacy protection bills Senate Bill 433 (SB 433)/House Bill 964 (HB 964). In August 2012, ESR News also reported that Illinois became the second state to prevent employers from requesting social network account information from current employees and job applicants when Governor Pat Quinn signed House Bill 3782 (HB 3782).

At the federal level, H.R. 5050: the Social Networking Online Protection Act (SNOPA) would prohibit employers from requiring or requesting that employees provide a user name, password, or other means for accessing a personal account on any social networking website. For more information about SNOPA, which is currently pending in Committee, visit http://www.govtrack.us/congress/bills/112/hr5050.

To help employers understand the risks and roadblocks faced using so-called ‘social media background checks,’ Attorney Lester Rosen, Founder and CEO of San Francisco-area background check firm Employment Screening Resources (ESR), has written a white paper titled ‘Managing the Risks of Using the Internet for Employment Screening Background Checks’. The complimentary white paper – which offers potential solutions to avoid legal issues involving discrimination, accuracy, and privacy – is available at: http://www.esrcheck.com/Download/.

For more information on background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening company accredited by The National Association of Professional Background Screeners (NAPBS®) – at http://www.esrcheck.com  or call ESR at 415.898.0044. To learn more about the newly updated second edition of the comprehensive background check guide ‘The Safe Hiring Manual’ by ESR’s Founder and CEO Attorney Lester Rosen, visit: http://www.esrcheck.com/SafeHiringManual.php.

Sources:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB1844&search_keywords=

http://gov.ca.gov/news.php?id=17759

About Employment Screening Resources (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more, visit http://www.esrcheck.com, call 888.999.4474, or email customerservice@esrcheck.com.

About ESR News:

The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.