Consumer Federation of California

Update: On September 13, AB 25 was held and is now a 2-year bill.

There is little doubt that social media is here to stay. In fact, given the marketing potential for social entities such as Facebook and Twitter, many employers encourage employees to post on social media either from an employer page or from a personal page with links to the employer.

Because Facebook and Twitter can provide a window into the personality of employees outside of work, some employers have asked employees and applicants to divulge social network user names and passwords ‘ even passwords to private email accounts ‘ as a condition of employment.

But asking for this information is an unwarranted invasion of privacy.

In the same way that employers can’t require you to share a personal photo album or ask to listen to your personal phone calls, they shouldn’t be able to see your Facebook profile, what you have tweeted about, or what pictures you have posted on the Internet. Simply because personal information is more readily available than in the past doesn’t open the door to employers’ demands to have access to it.

Due to this growing trend, in 2012, 14 states introduced legislation prohibiting employers or educational institutions from requesting social media user names and passwords from employees, students, or applicants. In 2013, at least 28 states have introduced legislation concerning social media use. California is one of those states taking a stand against employer-driven invasion of privacy.

Last year AB 1844, authored by Assemblymember Campos, was signed into law, which prohibits private employers from requiring that applicants or employees give up their email or social media account passwords.

In signing AB 1844, Governor Brown stated that, ‘The Golden State is pioneering the social media revolution and these laws will protect all Californians from unwarranted invasions of their personal social media accounts.’

Specifically, under AB 1844, which was effective January 1, 2013, employers cannot require or ask employees or applicants to disclose their social media usernames and passwords. Additionally, employers cannot require or request an employee to open or access the employee’s social media profiles in the employer’s presence. It is also unlawful in California for an employer to discharge, discipline, threaten to discipline or discharge, or retaliate against an employee or applicant for not complying with the employer’s demand or request for social media information.

However, according to the California Supreme Court, unless Labor Code provisions specifically address public (government) employers*, they do not apply to California employers in the public sector.

AB 1844 did not expressly include public-sector employers; therefore, public-sector employees are not protected.

The Consumer Federation of California supports AB 25, a common sense bill also authored by Assemblymember Campos, which would extend social media privacy rights to public-sector applicants and employees.

* The California public sector includes municipal, county, or state agencies and state colleges or universities.