November 13, 2012

California Law Prohibits Requests for Employees' Social Media Passwords or Information

Holland & Knight Alert

This fall, California joined Maryland and Illinois by enacting a law sharply limiting employers’ ability to ask applicants and employees to provide their social media passwords or otherwise to give employers access to social medial accounts or information. The new law goes into effect January 1, 2013.

What Does the Law Prohibit?

Specifically, the new law, AB 1844, “prohibits 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.”

The new law also prohibits employers from firing, threatening or disciplining any employee who refuses to comply with an unlawful request to access a social media account or divulge social media information.

“Social media” is broadly defined to include any “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.”

What the Law Allows

Significantly, the law does allow employers to require employees to divulge social media information in two situations. First, where the employee’s social media is “reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations,” the employer may request an employee to “divulge personal social media [information] reasonably believed to be relevant to the investigation,” provided that the social media information is used solely for purposes of that investigation or a related proceeding. Second, the law does not preclude an employer from “requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.”

Despite the law’s broad prohibitions, it is not clear what remedies are available to an employee who believes an employer has violated the law. The law does not specifically grant employees a right to sue in court for violations, and it states that the California Labor Commissioner is “not required to investigate or determine any violation” of the new law. Nonetheless, employers would be wise to proceed on the assumption that applicants and employees will be able to obtain relief for violations of the new Labor Code provision.

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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