October 5, 2012
Previously published on October 4, 2012
California joins Illinois and Maryland in enacting a law that greatly limits an employer’s right to access the social media information of employees and applicants. The California Labor Code now prohibits an employer from: - requiring or requesting an employee or job applicant to disclose a username or password for the purpose of accessing personal social media;
- requiring or requesting an employee to access personal social media in the presence of the employer;
- firing, disciplining or retaliating against employees who refuse to divulge social media information; and,
- requiring or requesting the divulging of any personal social media, unless an employer asks for personal social media that it reasonably believes to be relevant to an investigation of workplace misconduct or a violation of laws and regulations.
“Social media” is defined as an electronic service or account, or electronic content, including, email, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, online services or accounts, or Internet Web site profiles or locations. The new law permits an employer to require the disclosure of a username and password to access an employer-issued electronic device. A separate companion law was also enacted which applies these same restrictions to public and private postsecondary educational institutions. This new addition to the Education Code provides that these institutions cannot require or request a student, prospective student, or student group to disclose, access, or divulge a user name or password for the purpose of accessing personal social media. Also prohibited is threatening any student, prospective student, or student group with or taking any pecuniary actions for refusing to comply with a request for social media information. The law does not affect an institution’s rights and obligations to protect against and investigate student misconduct or violations of applicable laws and regulations. Lastly, a private nonprofit or for-profit postsecondary educational institution must post its social media privacy policy on its Website. Both laws become effective on January 1, 2013.
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