Hunton Employment & Labor Perspectives

Employees use social media extensively in communication for personal and business reasons.   Employers are increasingly monitoring this use, and insisting on access to some of the more popular sites.   California took  notice of this trend and passed legislation to protect employee privacy.  On September 27, 2012, Governor Brown signed AB 1844 making California the third state to limit access to employees’ social media account, joining Maryland and Illinois.

AB 1844 prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a user name 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. This bill also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.  The legislation permits an employer to require or request access to personal social media  to obtain information reasonably believed to be relevant to an investigation 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, or (b) when necessary to access an employer-issued device. 

As defined in the legislation, “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.” Accordingly, AB 1844 covers the most popular social media, including Facebook, Instagram, and blogs.  The legislation takes effect on January 1, 2013.