A Solution Without A Problem?

By Sarah Peace

A broad new California law, AB 1844, addresses a practice that most employers do not, and never did, employ. The law prohibits employers from requesting a California employee or applicant’s social media username and password, bans requesting an employee or applicant access his or her personal social media content in the employer’s presence, and generally prohibits employers from requesting that employees or applicants disclose personal social media content. The law also prohibits retaliation based on an applicant or employee’s refusal to comply with a request for access to a personal social media account. “Social media” here includes all electronic contents such as videos, photos, blogs, podcasts, text and instant messages, email, “online services or accounts,” and Internet profiles.

If an employer “reasonably believes” information from an employee’s personal social media account is relevant to an investigation of some kind of misconduct involving an employee, the employer may still request the employee disclose social media content, but the employer may only use the content for purposes of the investigation or a “related proceeding.” Employers are not allowed to request usernames and passwords unless the information is necessary for the employer to access its own electronic devices.

It remains to be seen how AB 1844 will be enforced. The law does not allow applicants or employees to sue the employer and it gives the California Labor Commissioner discretion to decline to prosecute violations. Nevertheless, expect to see more of this kind of regulation. Maryland and Illinois have enacted similar laws and more than a dozen states are presently considering such legislation.