The social media revolution continues to be born out of California. On January 1, 2013, two laws regulating social media go into effect altering the legal landscape concerning employees’ use of facebook, twitter and other accounts. California Assembly Bill 1844 (“AB 1844”) “prohibit[s] an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.” Under this new law, an employer cannot request or require an employee or an applicant to divulge his personal social media account information. The law does contain an exception for situations where an employer “reasonably believe[s] it 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.”
Senate Bill 1349 has a narrower reach, as it applies only to public and private postsecondary educational institutions. Under SB 1349, those educational institutions are prohibited from requiring students or prospective students to disclose their personal user names or passwords, or to divulge personal social media information and they must post their social media policy on their website.
Both laws have very broad definitions of “social media, which includes an “electronic service or account, or electronic content . . . videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” Arguably, that covers all digital content whether it is on the internet, a cell phone, an e-mail account or otherwise. So, while the State has publicized these laws as governing social media content, in fact, they have a much broader reach.
However, the laws are not unlimited in their application. For example, the laws do not prohibit employers from reviewing public social media accounts held by employees, nor do they regulate the ability of an employer to discipline an employee based on content posted on a public social media page (though other laws may). Indeed, the law specifically allows employers to demand passwords where they reasonably believed to be necessary to conduct an investigation into workplace misconduct. Finally, the laws apply only to “personal” social media accounts, so an employer could demand passwords for a work-related account
Nonetheless, California employers should ensure that employees who interview applicants and HR professionals fully understand the laws, their scope and their prohibitions. Employers should exercise particular caution when seeking access to employee’s personal social media accounts.