BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1844
                                                                  Page  1

          Date of Hearing:  April 24, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    AB 1844 (Campos) - As Amended:  April 17, 2012

                    Proposed Consent (As Proposed to be Amended) 

           SUBJECT  :  EMPLOYERS:  EMPLOYEE SOCIAL MEDIA SITES

           KEY ISSUE  :  SHOULD CALIFORNIA LAW MAKE CLEAR THAT EMPLOYERS MAY 
          NOT REQUIRE EMPLOYEES OR PROSPECTIVE EMPLOYEES TO PROVIDE THEM 
          WITH THE "KEYS" (THEIR PRIVATE USERNAMES AND PASSWORDS) TO THEIR 
          PERSONAL SOCIAL MEDIA ACCOUNTS SUCH AS FACEBOOK?  

           FISCAL EFFECT  :  As currently in print this bill is keyed 
          non-fiscal.

                                      SYNOPSIS

          This bill, which is non-controversial as proposed to be amended, 
          seeks to make clear that employers may not require employees or 
          prospective employees to provide them with the "keys" (their 
          private usernames and passwords) to their personal social media 
          accounts such as Facebook.  Recent media accounts have reported 
          that some employers may have demanded access to the private 
          social media accounts of employees and prospective employees, 
          and these reports have naturally generated significant public 
          concern across California and the entire nation about such 
          potential encroachments on individual privacy.  In response, 
          several states including Maryland, Texas and Illinois are also 
          considering similar legislation to prohibit this practice.  
          Given the significant amount of private information contained on 
          social media accounts, including race, sexual orientation and 
          age, supporters write that this bill is essential to helping to 
          protect the rights of employees and prospective employees across 
          California.  The bill is widely supported by a broad range of 
          groups including many employee organizations as well as business 
          groups and privacy rights groups. As proposed to be amended, it 
          has no known opposition.

           SUMMARY  :  Prohibits employers from requiring employees or 
          prospective employees to disclose a user name or account 
          password to access a personal social media account that is 
          exclusively used by the employee or prospective employee.  








                                                                  AB 1844
                                                                  Page  2

           EXISTING LAW  :

          1)Prohibits employers from limiting employee's political 
            participation or influencing employees' political beliefs.  
            (Labor Code Sec. 1101.)

          2)Prohibits employers from requiring applicants to submit to 
            polygraph, lie detector or other similar tests as a condition 
            of employment or continued employment.  (Labor Code Sec. 
            432.2.)

          3)Permits employers to investigate the credit history of 
            prospective employees.  (Civil Code Sec. 1785 et seq.)

          4)Permits employers to hire investigators to examine the 
            criminal history and past civil liabilities of prospective 
            employees.  (Civil Code Sec. 1786 et seq.)

          5)Under the California Fair Employment and Housing Act, limits 
            the information potential employers and potential housing 
            providers can request of applicants.  (Government Code Sec. 
            12920.)

           COMMENTS  :  This bill, which is non-controversial as proposed to 
          be amended, seeks to make clear that employers may not require 
          employees or prospective employees to provide them with the 
          "keys" (their private usernames and passwords) to their personal 
          social media accounts such as Facebook.  

          In support of the measure the author states:
           
                Because privacy laws have yet to be applied in any 
               meaningful fashion to employers in the social media 
               context, AB 1844 simply makes clear that employees have a 
               right to privacy in their social media.
           
          Social Media Contains Protected Personal Information Employers 
          Cannot Normally Obtain  :  As the Los Angeles Times recently 
          noted, social media users have been told for years to be careful 
          what is publically available on the internet ("A Social Media 
          Trend We Don't 'Like'" Los Angeles Time, March 28, 2012).  Since 
          social media sites like Facebook and Twitter have become widely 
          accessible to employers and others, hundreds of thousands of 
          users have used the security settings currently offered by some 
          social media sites to limit certain access to their personal 
          information by third parties other than the social media site 







                                                                  AB 1844
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          and its business partners.  The LA Times article pointedly notes 
          that personal social media profiles frequently provide 
          information about the social media user's sexual orientation, 
          religion, ethnic background, age and marital status -- all 
          information employers cannot require employees to disclose 
          (Government Code Sec.12920).  This bill, by prohibiting 
          employers from obtaining social media passwords, appropriately 
          makes clear that employers may not use the "back door" to obtain 
          information they are otherwise prohibited from obtaining. 

           Employers Still Retain Access to Employee Background  :  
          Currently, employers can screen numerous aspects of a 
          prospective employee's background.  Existing law permits 
          employers to screen employee's credit history, past civil 
          liabilities, criminal records and run a full background check on 
          prospective employees.  Additionally, employers can access all  
          public aspects of a prospective employee's social media 
          accounts.  This bill will not limit access to these  public 
          areas of an employee's or prospective employee's account.  The 
          burden remains on the individual social media user to limit 
          access to one's own social media profile and other content. 

           Recent Press Reports Raising the Specter of Potential Privacy 
          Invasions  :  Though there have been some recent press reports 
          about employers reportedly requesting the social media usernames 
          and passwords of prospective employees, it is not yet clear to 
          what degree this is yet a significant issue.  The most widely 
          known case of employers seeking private social media user names 
          and passwords reportedly involved the Maryland Division of 
          Correction and applicants for prison guard positions.  In 
          response to this situation, Maryland passed the 
          first-in-the-nation law banning employers from demanding social 
          media passwords and usernames.  In addition, a growing number of 
          states including Illinois and Texas also have social media 
          password bills proceeding through their legislatures. 

           Author's Amendment  :  The author prudently is making the 
          following amendment to this measure in order to avoid confusion 
          in the Labor Code:

            On page 2, delete lines 15-16, which states "982. An employer 
            does not have a duty to search or monitor social media before 
            hiring an employee."

           ARGUMENTS IN SUPPORT  :  In support of the bill the State Building 
          and Construction Trade Council of California notes:







                                                                  AB 1844
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               In this age of electronic correspondence and social media 
               more and more of a person's personal life is online. Social 
               media websites are the next frontier in "personal space" 
               and indeed are a safe and effective way to not only store 
               personal information but to also make it easier to stay in 
               touch with friends and family. Email and social media are 
               the next progression in interpersonal relationships and 
               should be viewed as being no different than previous 
               generation's personal correspondence, photo albums and 
               address books.

          AFSCME adds in support of the measure that "AB 1844 simply makes 
          clear that prospective employees have a right to privacy in 
          their personal social media."  Consumer Action states the bill 
          protects privacy by preventing employers from accessing 
          information they would be otherwise prohibited from seeing 
          outside of social media noting, "although it would be illegal to 
          question a job applicant about her age, sexual orientation, or 
          whether she was planning to have a child in the near future, 
          answers to these questions can usually be found on the 
          applicant's social networking page."

          In calling this bill a "job creator" the California Chamber of 
          Commerce, along with other business groups, applaud the bill for 
          clarifying an employer's responsibility with regards to 
          prospective employee's social media, while the Civil Justice 
          association notes the bill adds clarity in a "complex and 
          evolving arena."
           
          Pending Legislation  :  SB 1349 (Yee, 2012):  Similarly prohibits 
          employers from requiring the disclosure of social media user 
          names and passwords.  Also prohibits such conduct at educational 
          institutions.  That bill recently passed the Senate Education 
          Committee by a vote of 7-0.  

           REGISTERED SUPPORT / OPPOSITION  :

           Support 

           American Federation of State, County and Municipal Employees 
          (AFSCME)
          California Chamber of Commerce
          California Association of Bed and Breakfast Inns
          California Chamber of American Fence Association
          California Fence Contractor Association







                                                                  AB 1844
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          California Framing Contractors Association
          California Hotel and Lodging Association
          California Association of Joint Powers Authorities
          California League of Food Processors 
          California Manufacturers and Technology Association
          California Retailers Association
          California Teamsters Public Affairs Council
          California Conference of Machinists
          California Conference Board of Amalgamated Transit Union
          Civil Justice Association of California
          Consumer Action
          Engineers & Scientists of California, IFPTE Local 20
          Flasher Barricade Association
          International Longshore and Warehouse Union
          Jockeys' Guild
          Marin Builders Association
          Privacy Rights Clearinghouse
          Professional and Technical Engineers, IFPTE Local 21
          State Building and Construction Trades Council of California
          TechNet
          United Food & Commercial Workers Western States Council
          Unite Here, AFL-CIO
          Utility Workers Union of America Local 132

           Opposition 
           
          None on File


           Analysis Prepared by  :  Drew Liebert and Nicholas Liedtke / JUD. 
          / (916) 319-2334