Employer Use Of Social Media

With the social media becoming a part of almost every person’s life, employers increasingly have demanded access to prospective or current employee’s social media accounts.  Effective this year, California has ended this practice by enacting Labor Code section 980.

The new law begins by broadly defining social media as “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.  (Labor Code § 980(a))  After defining what qualifies as social media, the new law prohibits an employer from requiring or requesting “an employee or applicant for employment to do any” one of three things.  (Labor Code § 980(b))

(1) Disclose a username or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media, except as relevant to an investigation of employee misconduct.

Not only are employers prohibited from making these demands or requests, they also are prohibited from retaliating in any way “against an employee or applicant for not complying with a request or demand by the employer that violates this section.”  (Labor Code § 980(e))

The bottom line is that every employer should update its procedures for screening job applicants as well as its social media policy.  Larger employers also should educate employees in supervisory positions about these limits on their access to the employees’ social media.  Since these new law expressly prohibits retaliation against any employee who declines an employer’s demand or request for access to his/her social media, except an explosion of these retaliation cases over the next few years.

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