Posted By Laurie A. Pehar Borsh,
Wednesday, July 22, 2015
Updated: Tuesday, July 21, 2015
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By Kyung M. Lee - Bergeson, LLP
California law does not give employers unrestricted access to employee and job applicant social media accounts (e.g., Facebook, Twitter, Instagram, etc.). Instead, California Labor Code Section 980 (“Section 980”) sets strict parameters on employers’ ability to obtain certain social media-related information from employees or job applicants. Below is a list of seven things that employer hiring managers should know regarding their obligations (and some rights) in this area.
- Definition of “Social Media.” Section 980 defines “social media” very broadly. It “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.” (Cal. Labor Code Section 980(a) (italics added).)
- What an Employer May Not Do. As an employer, except under limited exceptions for employees (discussed below), you may not require or request an employee or job applicant to (a) disclose a username or password for the purpose of accessing social media; (b) access personal social media in your presence; or (c) divulge any “personal social media.” (See id. at subsection (b).)
- What Is “Personal Social Media?” Unfortunately, Section 980 does not define the term “personal.” In light of this ambiguity, employers should err on the side of safety by treating an employee’s or job applicant’s social media as “personal” even if it appears to serve both personal and business-related purposes at the same time. And, if use of social media is a part of an employee’s job responsibilities, then a written agreement or policy setting out which social media accounts are business-related may be advisable.
- Investigations. An employer may require 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.” However, you must use such social media “solely” for purposes of the investigation or a related proceeding and for no other purpose. (Id. at subsection (c).)
- Employer-Issued Devices. You may require or request an employee to disclose usernames and passwords for the purpose of accessing employer-issued devices (e.g., company laptops or iPhones). (See id. at subsection (d) (italics added).) This provision does not cover employee-owned devices that are used for work purposes under a Bring Your Own Device (“BYOD”) program. Employers with BYOD programs should have a written agreement or policy that gives the employer the device access necessary to administer employer software or applications that are installed on an employee’s device as a condition for employee participation in the program.
- Retaliation. You may not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or job applicant for failing to provide social media information to which you (as an employer) are not entitled. (See id. at subsection (e).)
- Employee Claims. Although Section 980 does not provide penalties or damages for violations by employers, an employee may bring a claim for wrongful termination in violation of public policy against his/her employer on the basis of a purported Section 980 violation. Employees and job applicants may also use alleged violations of Section 980 as the basis for an action under California Business and Professions Code Section 17200 and/or California Labor Code Section 2698 (the Private Attorneys General Act of 2004).
About the Author
Kyung M. Lee is Senior Counsel at Bergeson, LLP in San Jose, where she focuses on employment litigation and counseling. Ms. Lee regularly contributes to the Bergeson, LLP Employment Law blog, which is available at www.be-law.com/category/blog.
This blog post is for general informational purposes only and not to provide specific legal advice. You understand and acknowledge that your review and accessing of this blog post do not create an attorney-client relationship between you and Bergeson, LLP and any Bergeson, LLP attorney. This blog post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.