Online And Off-Limits: New California Legislation Prohibits Employers From Requiring Access To Social Media Accounts Of Employees

Author:Mr Jake Romero
Profession:Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Facebook announced last week that it now has upwards of 1 billion active users. That same week, over 10 million Twitter messages were sent during the U.S. presidential debate . With the number and use of social media websites rapidly expanding, your privacy rights with respect to your tweets, "likes" and status updates, even the ones about being hungry and/or sleepy, are the focus of new legislation enacted in California.

Assembly Bill No. 1844 prohibits an employer from "requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media." AB-1844 also prohibits retaliation by the employer against any employee or applicant for not complying with employer demands that violate this prohibition. A companion bill that was also enacted last week, Senate Bill No. 1349 , prohibits similar requests and requirements made by certain colleges of their students.

The greater likelihood is that in your hiring and retention practices, you are not specifically requiring employees and prospective employees to hand over their user names and passwords. However, AB-1844 defines "social media" as "an electronic service or account, or electronic content, including, but not limited to, video, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations." This definition is quite broad, and can potentially be applied to a large swath of digital content that is not traditionally thought of as "social media." As a result, we recommend that you consider the following steps to ensure that you do not inadvertently violate AB-1844 or lose control of or access to your business's social media presence:

Your business should have a comprehensive, easy to understand Internet usage policy in place (sometimes referred to as an "acceptable use policy"). A strong Internet usage policy will help you manage and track where your employees keep and retain company information and can set...

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