Do you think that your social media can affect whether you are hired for a new position or not? According to Christine Lyon and Melissa Crespo, writers on behalf of Bloomberg law, a recent survey of hiring managers and human resource professionals reports that more than two in five companies use social networking sites to research job candidates. There have been several concerns about the amount of information that these hiring managers are asking and if they should even have the ability to ask for instance the name you go by in Facebook, your password, or your Instagram account. Lyon and Crespo report that a dozen states already have passed special laws restricting employer access to personal social media accounts called “state social media laws” and there is similar legislation pending in at least 26 states. To see the full client alert on behalf of Morrison & Foerster LLP click here.
The restrictions that these social media laws differ, but the general application is to bar them from requiring and/or requesting that an applicant disclose the user name or password to the account in question. Other state laws go further and ban the request to/for adding an employee, supervisor or administrator to the friends or contact list of his or her personal social media account, changing the privacy setting of the account, disclosing information that allows access to the account, access the media in the employer’s presence, or the divulgence of the personal social media.
It is important to keep in mind that though some states have prohibited the requesting of social media information, the information that the applicant has open to the public is free game for the hiring managers to look up themselves.
Currently California follows the Social Media Privacy Act, which prohibits universities and employers form demanding your email and social media passwords. According to ABC News, California pioneered the social media revolution. Bill number SB 1349 provides protection for students and applications at colleges and universities while bill number AB 1844 gives the same protections for employees and job applicants. Leginfo.legislature.ca.gov gives the exact language of what was added to the Labor Code:
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 2.5 (commencing with Section 980) is added to Part 3 of Division 2 of the Labor Code, to read: CHAPTER 2.5. Employer Use of Social Media
980. (a) As used in this chapter, “social media” means 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.
(b) An employer shall not require or request an employee or applicant for employment to do any of the following:
(1) Disclose a username or password for the purpose of accessing personal social media.
(2) Access personal social media in the presence of the employer.
(3) Divulge any personal social media, except as provided in subdivision (c).
(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.
Special thank you to Katrina Nicha as she finishes up her first year of law school at Whittier, another great post!