BILL ANALYSIS Ó
AB 1844
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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.
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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
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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:
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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
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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