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Landmark CA Social Media Privacy Bill

On September 27, 2012 California became one of three states in the nation, after Maryland and Illinois, to increase privacy protections for social media users by limiting an employer’s ability to demand employees’ social media usernames, passwords and other information related to their personal social media accounts.

Essentially, Assembly Bill 1844 “prohibit[s] 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.” The new law also prohibits an employer from discharging, disciplining, threatening 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 the provisions of the law. AB 1844 describes “social media” as including videos, photographs, blogs, podcasts, text messages, e-mail, online accounts, and website profiles.

However, AB 1844 does not apply to information used to access employer-issued electronic devices.The bill specifically states that it shall not be construed to preclude an employer from requiring an employee to disclose passwords or usernames for such devices. Similarly, employers are specifically permitted to require employees to divulge social media passwords for the purposes of investigating allegations of employee misconduct.

Govern Brown commented in a Facebook post, “California pioneered the social media revolution. These laws protect Californians from unwarranted invasions of their social media accounts."

The Bill will add the following text to the Labor Code as Section 980:

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.

SEC. 2. Notwithstanding any other provision of law, the Labor Commissioner, who is Chief of the Division of Labor Standards Enforcement, is not required to investigate or determine any violation of this act.

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