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New 2013 Law: Do Not Ask Your Employee About Social Media

Give me your social media username and password!

The use of social media in the workplace can present several problematic situations around issues of free speech, discrimination of current and potential employees, harassment, and even termination. The California legislature, in its attempt to curtail these problems have passed a bill effective January 1, 2013 that would prohibit 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. Although existing law protects current and potential employees against discrimination and/or retaliation in the workplace, the drafters of this bill were concerned that nothing specifically addresses the issues that arise with the use of information obtained through social media sites.

It is illegal for an employer to discriminate against an employee or applicant on the basis of lawful conduct they engage in during nonworking hours away from the employment site. Examples of protected lawful conduct include exercising free speech rights or engaging in political activities while off-duty. Although existing law affords current and potential employees with various protections against discrimination and/or retaliation in the workplace, nothing specifically prohibits the use of information obtained through social media sites. This bill prohibits an employer from requiring or requesting an employee or applicant to disclose information to access a personal social media account, whether in or outside the presence of the employer.

Email equals Social Media?

Keep in mind that “social media” is pretty broadly defined to not only include online videos, photos, blogs, podcast  instant messages, email, etc. I’m not sure this fits the common definition of Facebook and Twitter.

Is this really necessary?

I’m not sure of many employers that really care what their employees are doing in their personal time so long it does not effect work on the job, but this law does reflect general California policy as individuals have a right to privacy under the state constitution. Despite some employer concerns, there are some carve outs which provide that these new provisions of law do not prohibit lawful investigations into employee misconduct.

What is the rest of the country doing?

In response to incidents, legislation was recently introduced (April 27, 2012) at the federal level which would ban such practices. H.R. 5050: Social Networking Online Protection Act similarly seeks to ban employers from requiring or requesting access to the private email accounts or private social media accounts of employees and similarly seeks to bar higher education institutions and schools from requiring or requesting access to the private email accounts or private social media accounts of students. Lawmakers in Maryland passed a bill (SB 433/HB 964) this year which prohibits employers from requiring that applicants or employees disclose personal user names or passwords for any personal account or service. The bill also prohibits an employer from taking or threatening to take certain discipline actions for an employee’s refusal to disclose certain password and related information. The bill was signed by the Governor of Maryland and the new law took effect October 1, 2012.

While the Maryland legislation was the first of its kind, lawmakers in several other states have introduced similar legislation. The State of Illinois is also considering legislation to address the issue of password privacy. HB 3782 amends the Right to Privacy in the Workplace Act to provide that it is unlawful for any employer to ask any prospective employee to provide any username, password, or other related account information in order to gain access to a social networking website where that prospective employee maintains an account or profile. HB 3782 passed both houses and is now awaiting the Governor’s signature of approval. Similar legislation has been introduced in New Jersey, Massachusetts, New York, and other states.

Nasir Pasha, Esq.

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Managing attorney and co-host of podcast Legally Sound | Smart Business

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