New California Labor Code Section 980, restricting employer access to employees’ personal social media, goes into effect on January 1, 2013. California will become the third state, behind Maryland and Illinois, to enact a law to restrict employer access to employee and applicant social media.
The new statute limits California employers’ ability to request or demand the personal social media of applicants and employees, except for employee investigations and employer access to employer-issued electronic devices. “Social media” is “an electronic service or account, or electronic content, including, but not limited to, videos, still photography, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” Employers cannot require or even request employees or applicants to disclose their usernames or passwords to access their personal social media or for them to access their personal social media in the presence of the employer.
The new law, however, does not limit employers’ existing rights and obligations to investigate incidents of employee misconduct or employee violation of laws and regulations. Employers may request that an employee divulge personal social media as part of an investigation, so long as the request is reasonably relevant to the allegations in the investigation and the disclosed content used only for that investigation and any related proceeding. To ensure such reasonable relevance, employers should tailor their requests to specific content and avoid any “fishing expedition” beyond the scope of the investigation.
In addition, under the new law, employees may be required or requested to disclose their usernames, passwords, or other methods to access employer-issued electronic devices, even outside the context of an investigation.
It will be illegal to discipline or otherwise retaliate against employees or applicants who decline a request or demand by the employer that violates the law, such as a request or demand to access personal social media unrelated to an investigation. At the same time, however, the law does not prohibit discharging or taking other adverse action against an employee or applicant permitted by law.
Employers need to review and update their social media, investigations and technology policies to reflect these change in the law for 2013.