BILL ANALYSIS Ó
AB 1844
Page 1
Date of Hearing: May 2, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 1844 (Campos) - As Amended: April 26, 2012
SUBJECT : Employer use of social media.
SUMMARY : Prohibits an employer from requiring an employee or a
prospective employee to provide access to his or her personal
social media account information. Specifically, this bill :
1)Prohibits an employer from requiring an employee or
prospective employee to disclose a user name or account
password for access to a personal social media account that is
exclusively used by the employee or prospective employee.
2)Defines, for the purpose of this bill, "social media," as any
electronic medium where users may create, share, and view
user-generated content, including uploading or downloading
videos or still photographs, blogs, video blogs, podcasts,
instant messages or online social networking content.
EXISTING LAW :
1)Limits the information that potential employers and potential
housing providers can request form applicants.
2)Permits employers to hire investigators to examine the
criminal history and past civil liabilities of prospective
employees.
3)Permits employers to investigate the credit history of certain
specified prospective employees.
4)Prohibits employers from limiting an employee's political
participation or influencing an employee's political beliefs.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, privacy laws surrounding
social media sites have not been applied to employers in a
meaningful fashion. In fact, as technology has advanced, the
federal government and state governments have been slow to
modify existing laws that incorporate the new ways that
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individuals communicate information. For example, the federal
Electronic Communications Privacy Act of 1986 (ECPA) protects
wire, oral, and electronic communications while those
communications are being made, are in transit, and when they are
stored on computers. The ECPA applies to electronic mail
(email), telephone conversations, and data stored
electronically. According to the United States Department of
Justice (USDOJ), ECPA was significantly amended by the
Communications Assistance to Law Enforcement Act (CALEA) in
1994, the USA PATRIOT Act in 2001, the USA PATRIOT
reauthorization acts in 2006, and the Foreign Intelligence
Surveillance Act of 1978 (FISA) Amendments Act of 2008.
The Stored Communication Act (SCA), which is in Title II of
ECPA, makes it unlawful for a person to intentionally access,
without authorization, a facility through which an electronic
communication service is provided, without valid authorization
or to intentionally exceed an authorization to access that
facility and thereby obtain, alter, or prevent authorized access
to the communication while it is in storage on the system.
Unfortunately, federal law has not been amended to address
social media sites.
However, the lack of clear guidance at the federal level has not
stopped federal agencies or states from addressing the issue of
employee and employer rights as it relates to social media sites
and social media activity. In 2010, for example, the National
Labor Relations Board (NLRB), an independent federal agency,
investigated complaint that alleged that an ambulance service
illegally terminated an employee who posted negative remarks
about a supervisor on the employee's personal Facebook page.
The complaint also stated that the company maintained and
enforced an overly broad blogging and internet posting policy.
According to the NLRB, their investigation found that the
employee's Facebook posting constituted protected concerted
activity and that several provisions of the company's blogging
and internet posting policy interfered with the ability of
employees to exercise their right to engage in protected
concerted activity.
Pietrylo v. Hillstone Restaurant Group
While the above-mentioned Connecticut case involves the
employee's rights to protected speech, it also addresses the
limits that federal law places on employers' interference and
monitoring of employee's social media use in general. The issue
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of an employee's right to privacy with regard to his or her
social media account password was discussed in the case.
According to court documents, the lawsuit was filed by two
employees, Mr. Pietrylo and Ms. Marino, after they were fired
from their restaurant employer for creating a private MySpace
page that allowed employees to vent about their workplace.
Since the page was private and could only be joined by
invitation, one of the restaurant managers asked a third
employee, Ms. St. Jean, for her MySpace password in order to
access the private page. While the employee admitted that she
was not threatened, she did state that she felt that she had to
give her password to her manager when asked. The jury
ultimately found that the Ms. St. Jean's consent was coerced and
ruled in favor of the former employees (Pietrylo and Marino) in
June 2009. The United States Court of Appeals for the Third
Circuit affirmed that decision in September 2009.
Other States
In Maryland, House Bill 964 (HB 964), introduced February 10,
2012, would prohibit an employer from requesting or requiring
that an employee or applicant disclose any user name, password
or other means for accessing personal account or service through
certain electronic communication devises. HB 964 would also
prohibit an employer from taking or threatening to take certain
discipline actions for an employee's refusal to disclose certain
password and related information. Finally, the bill would
prohibit an employer from failing or refusing to hire an
applicant that refuses to disclose his or her password and other
related information. HB 964 is currently being considered on the
floor of the state's House.
The State of Illinois is also considering legislation to address
the issue of password privacy. Senate Bill 434 (SB 434),
introduced February 2, 2012, would prohibit postsecondary
education institutions from requiring a student or applicant for
admission to disclose any user name, account name, password or
other means for accessing certain accounts or services through
an electronic communications device. SB 434 would also prohibit
postsecondary education institutions from taking or threatening
to take disciplinary actions against a student or applicant who
refuses to disclose this information. Finally, SB 434 specifies
that the law would not prohibit a student or applicant from
voluntarily disclosing his or her user name, password, or other
means for accessing their accounts or services through an
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electronic communications device.
FACEBOOK PRIVACY STATEMENT
In a statement issued on March 23, 2012, Facebook's Chief
Privacy Officer (CPO) wrote that the company had seen a
distressing increase in reports of employers or others seeking
to gain inappropriate access to user's Facebook profiles.
Facebook's CPO stated that the practice undermines the privacy
expectations and the security of both the Facebook user and the
user's friends and potentially exposes employers who seek this
access to unanticipated legal liability. The CPO cautions users
and notes that they should not be forced to share their private
information and communications in order to gain employment.
Facebook's CPO also cautions employers against potential claims
of discrimination or liability for failing to protect employee's
information.
RELATED LEGISLATION
SB 1349 (Yee) of 2012 would create the Social Media Privacy Act
to establish prohibitions on the ability to require the
disclosure of information on personal social media accounts.
Specifically, SB 1349 would prohibit a public or private
postsecondary educational institution or a public or private
employer from requiring, or from formally requesting in writing,
a student or employee (or prospective student or employee) to
disclose the user name or account password for a personal social
media account. SB 1349 would also define "social media" as an
electronic medium where users may create, share, and view
user-generated content including videos, photographs, blogs,
video blogs, podcasts, instant messages, or web site profiles or
locations.
SB 1349 recently passed out of the Senate Industrial Relations
Committee.
ARGUMENTS IN SUPPORT
In a letter expressing support for this bill, the California
Teamsters Public Affairs Council writes that what people do in
their personal lives, including what they say on their social
media accounts, should be confidential and not something that
employers should be monitoring or approving as a condition of
obtaining employment. Writing in support of this bill, the
Privacy Rights Clearinghouse (PRC) states that an employer gains
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full access to an employee's account when the employer requires
the employee to disclose his or her account information. PRC
states that the effect is no different than an employer reading
a personal diary and personal emails or viewing personal home
videos. In their letter of support, the State Building and
Construction Trade Council of California states that social
media websites are the next frontier in "personal space" and the
next progression in interpersonal relationships and therefore
should be viewed as being no different than previous
generation's personal correspondence, photo albums and address
books.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME)
California Association for Health Services at Home
California Conference Board of Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers
California Labor Federation, AFL-CIO
California Teamsters Public Affairs Council
Consumer Action
Engineers & Scientists of California, IFPTE Local 20
International Longshore and Warehouse Union
Jockeys' Guild
Privacy Rights Clearinghouse
Professional & Technical Engineers, IFPTE Local 21
South Bay Labor Council
State Building and Construction Trades Council of California
United Food & Commercial Workers Western States Council
UNITE-HERE
Utility Workers Union of America Local 132
Opposition
None on file
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Analysis Prepared by : Shannon McKinley / L. & E. / (916)
319-2091