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California Workers Have More Social Media Protections Than Most

May 24, 2013

A recent column in The Boston Globe questioned an employer's tactic of "friending" job applicants on social media sites, prior to the individual being hired.
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This of course puts applicants in a tough position. Los Angeles Employment Lawyer Vincent Howard of HOWARD LAW knows most would generally prefer not to allow a prospective employer access to a page that contains private life photos and messages, even when he or she has nothing to hide.

California is ahead of the curve compared to most states on the issue of employers' legal right to access or demand information of workers or job applicants. Last year, Gov. Jerry Brown signed Assembly Bill 1844 and Senate Bill 1349 to prohibit both universities and employers from demanding e-mail and social media passwords from employees and applicants.

AB 1844 prohibits employers from mandating that employees or job applicants provide their username and password combination for social media accounts. SB 1349, a companion bill to the first, focuses on barring universities and colleges from demanding the same information of students and prospective students.

California was among the first to pass such measures, and there are now 10 states that have enacted similar legislation. The federal Password Protection act of 2012 would have introduced many of those same protections to all Americans, but it sputtered out in the Senate last year.

Other states are currently considering similar measures.

It's not clear how many employer have demanded this kind of information from workers, but we do know that more than 100 cases currently before the National Relations Labor Board involve workplace policies on social media. Facebook has also reported an increase of employers demanding inappropriate access to user profiles and private information contained therein.

However, even the California law has exceptions. For example, an employer can pursue information on a worker's social media account if there is "reasonable belief" that the information could be relevant to an internal investigation involving either employee misconduct or a violation of law.

Also, workers can be required to disclose passwords that are necessary for accessing employer-issued electronic devices.

But there doesn't appear to be any law against a company attempting to "friend" an employee or applicant. However, an argument could be made that there was undue pressure on the employee to comply. If the company retaliates against the worker for refusing to accept the friend request or for certain information or images contained therein, there might be potential grounds for employment litigation.

Companies recognize that social media can provide them with a wealth of information that might not otherwise be accessible to them - information that the employee is unlikely to reveal on his or her own. The question is where do they find a balance, and how can employees protect themselves.

Our best preemptive advice is, aside from private messaging, put nothing on your social media outlets that you wouldn't want your employer to see. That's not to say that you don't have the right to do so or that the firm isn't crossing the line by making a "friend" request or other demand. But in general, limiting the amount of information you share about yourself online is a good idea.

Los Angeles Employment Attorney VINCENT HOWARD at HOWARD LAW can help. Call toll-free at 1-800-872-5925 or send us a message online.

Additional Resources:
Employers "friending" applicants raises questions, Feb. 4, 2013, By Chad O'Connnor, Boston Globe

More Blog Entries:
Former NBA Superstar Shaq Sues Former Employee Over Stolen Emails, Nov. 9, 2011, Los Angeles Employment Lawyer Blog