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New Laws Prohibit Employers And Colleges From Requesting Social Media Passwords
October 9, 2012 | Bulletin No. 1011597.2
AB 1844 adds a new provision to the Labor Code that prohibits an employer from requiring an employee or applicant for employment to (1) disclose his or her username or password for the purpose of accessing social media, (2) access his or her personal social media in the presence of the employer, or (3) divulge any personal social media.
Social media is defined “as an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” The definition of “social media” is the same in AB 1844 and SB 1349 (see discussion below).
The new law does not prohibit an employer from asking an employee to divulge personal social media that is relevant to an investigation of employee misconduct or violation of applicable laws and regulations. If an employer seeks social media for investigatory purposes, the social media must be used only for the investigation or a related proceeding. Additionally, the new law does not preclude an employer from requiring or requesting an employee’s username or password that is used for accessing an employer-issued electronic device.
The new law also prohibits employers from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an applicant or employee for his or her refusal to comply with an employer’s request or demand that violates AB 1844. However, the Labor Commissioner is not required to investigate or determine any violation of this new law.
SB 1349 adds a new provision to the Education Code that prohibits public and private postsecondary institutions, as well as their employees and representatives, from requiring students, prospective students, or student groups to (1) disclose their usernames or passwords for accessing personal social media, (2) access their personal social media in the presence of the postsecondary institution’s representative or employee, or (3) divulge any social media information.
SB 1349 also prohibits a postsecondary institution from disciplining, suspending, expelling, or threatening to take any of these actions, or to otherwise penalize a student, prospective student, or student group for refusing to comply with a demand or request that violates SB 1349. However, SB 1349 does not affect the rights or obligations of a postsecondary institution to protect against and investigate alleged student misconduct or violation of applicable laws and regulations or to take any adverse actions against a student or prospective student or student group for any lawful reason.
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.