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Labor and Employment Law

California Enacts Law Limiting Employers' Access to Employees' Social Media: What Employers Need to Know to Avoid the Minefields

Whether you "like" it or not, social media is changing the legal landscape of employee privacy rights at a rapid pace. On September 27, 2012, California Governor Jerry Brown signed into law AB 1844, which prohibits employers from requiring (or requesting) employees or applicants to divulge their social media log-on information. This article will address the evolving area of employee privacy law in California, and the impact of AB 1844.


Using Social Media to Screen Applicants 

     On October 4, 2012, Facebook announced that it had more than one billion users who were using Facebook actively each month. It is estimated that Americans spend 53 billion minutes per month on Facebook (that is, 4 hours per user). Websites like Twitter, Google+, LinkedIn and Pinterest also are rapidly expanding their user base.

     Employers have long been aware of the potential wealth of information available regarding an applicant via social media. According to a CareerBuilder survey of HR professionals and hiring managers, 37% of employers are using social networking sites to research job candidates. Over a third of the respondents reported that they have used information found on social media websites to exclude a candidate.

     California's AB 1844 expressly restricts employers from requesting or requiring an applicant to provide logon information or to access their social media websites in the employer's presence. Other conduct likely to be prohibited under the new law may include requesting that an applicant or employee add the employer as a "friend" thereby giving the employer access to information not otherwise publically available.

     The law does not explicitly restrict employers from accessing publically available information. However, employers should still be cautious in conducting online searches. Such searches often uncover information that employers cannot lawfully use to make hiring decisions-such as an applicant's status in a "protected category."

     While an employer may not request or require an applicant or existing employee to divulge his/her personal social media, the law is silent on whether an employer can use private social media information volunteered by an existing employee that is "friends" with the applicant or employee. For example, if an existing employee gets word that the employer is looking to hire their "frenemy" from college, and decides to print out Facebook photos of said frenemy doing a keg standing while wearing a socially insensitive costume, can the employer legitimately use this information to deny employment?

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