By Elizabeth Hearey, Senior Counsel
and Chet Quaide, Partner
Pleasanton Office
As an investigative device, some employers, colleges, and universities have been asking employees, applicants for employment, and students for passwords to their social media accounts. Others have asked employees to sit down with managers to review their social media content or fully print out their social media pages. The practice remains a hot topic in the news because social media accounts, such as Facebook and Twitter, often contain highly personal information which individuals want to keep out of the eye of employers or school officials. Will these investigative practices be allowed to continue in California?
Recently, there has been a push to pass both federal and state laws to deny access to private information on social network accounts. If SB 1349 and AB 1844 pass, California will be among the first states to deny employers and postsecondary educational institutions access to these accounts.
SB 1349, if passed and signed into law, would add a new chapter to the Education Code entitled “Social Media Privacy” intended to protect postsecondary students’ privacy rights. The provisions would be applicable to both public and private postsecondary educational institutions. These institutions, their employees, and their representatives would be prohibited from requiring or requesting a student, prospective student, or a student group to disclose a user name or password, to access social media in the presence of the institution’s employee or representative, or to divulge personal social media information. “Social media information” includes, for example, videos, blogs, podcasts, instant and text messages, email, online services or accounts, and Internet Web site profiles and locations. If a student or prospective student refused to comply with a request which violated the law, the educational institution could not suspend, expel, discipline, threaten to take any of those actions, or otherwise penalize the student based on the refusal. The proposed legislation states that it would not affect the educational institution’s existing rights and obligations to protect against and investigate alleged student misconduct or violations of laws or regulations. Private postsecondary educational institutions would have to change their relevant policies and submit certification to the Bureau for Private Secondary Education that the institution is in compliance.
AB 1844, if passed and signed into law, would add a new chapter to the Labor Code entitled “Employer Use of Social Media.” Under the proposed legislation, an employer would be prohibited from requiring or requesting that an employee or applicant for employment: 1) disclose a user name or password for accessing personal social media, or 2) access personal social media, whether in or outside of the presence of the employer. The employer would be prohibited from discharging, disciplining, threatening to discharge or discipline, and retaliating against an employee or applicant for exercising rights under this section, but the employer would not be prevented from taking actions if otherwise permitted under the law. The proposed law is not intended to affect an employer’s existing rights and obligations to investigate alleged workplace misconduct.
Neither SB 1349 nor AB 1844 would prohibit employers and post-secondary educational institutions from using information that is available to the general public. However, the proposed legislation would significantly curtail investigative techniques apparently used by some employers and post-secondary educational institutions to evaluate individuals seeking employment, promotions, admissions to college programs, athletics, scholarships, and other such opportunities.
Regardless of whether these bills pass, employers, colleges, and universities should carefully weigh the advantages and disadvantages of looking at individuals’ social media accounts. For instance, employers and educational institutions who do access individuals’ social media accounts may obtain personal information which could provide some basis for later claims of discrimination or wrongdoing.
