BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1844
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 1844 (Campos)
          As Amended August 22, 2012
          Majority vote 

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          |ASSEMBLY:  |73-0 |(May 10, 2012)  |SENATE: |29-5 |(August 28,    |
          |           |     |                |        |     |2012)          |
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           Original Committee Reference:    L. & E.  
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           SUMMARY  :  Generally prohibits an employer from requiring or 
          pressuring an employee or job applicant to hand over the "keys" 
          to their personal social media account such as Facebook or 
          Twitter (their so-called username or password).  Specifically, 
           this bill  :

          1)Defines "social media" as an electronic service or account, or 
            electronic content, including, but not limited to, videos, 
            still photography, blogs, video blogs, podcasts, instant and 
            text messages, email, online services or accounts, or Internet 
            Web site profiles or locations. 

          2)Prohibits an employer from requiring or requesting an employee 
            or applicant for employment to do either of the following: 

             a)   Disclose a username or password for accessing personal 
               social media.

             b)   Access personal social media, in the presence of the 
               employer. 

             c)   Divulge any personal social media, except as permitted.

          3)Specifies that nothing in the bill 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 any such personal social media is 
            used solely for purposes of that investigation and any related 
            proceedings. 








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          4)Specifies that nothing in this bill 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.

          5)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 this bill.  
            However, this bill does not prohibit an employer from 
            terminating or otherwise taking an adverse action against an 
            employee or applicant if otherwise permitted by law.

          6)States that notwithstanding any other law, the Labor 
            Commissioner, who is the Chief of the Division of Labor 
            Standards Enforcement, is not required to investigate or 
            determine a violation of this act.

           The Senate amendments  clarify that an employer could not 
          discharge or discipline or otherwise retaliate against an 
          employee or applicant for exercising his or her protections 
          under the bill; clarify that nothing in the measure 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; and state that notwithstanding any other law, the 
          Labor Commissioner, who is the Chief of the Division of Labor 
          Standards Enforcement, is not required to investigate or 
          determine a violation of this act.
           
          AS PASSED BY THE ASSEMBLY  , this bill was substantially similar 
          to the version approved by the Senate.
           
          FISCAL EFFECT  :  None
           
          COMMENTS  :  This bill 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 and Twitter.  

          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 








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          media."
           
           As the Los Angeles Times recently noted, social media users have 
          been told for years to be careful what is publicly available on 
          the Internet ("A Social Media Trend We Don't 'Like'" Los Angeles 
          Times, 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 and its business partners.  The 
          Los Angeles 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.  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. 

          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. 

          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. 

           Pietrylo v. Hillstone Restaurant Group  .  The issue of an 








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          employee's right to privacy with regard to his or her social 
          media account password was discussed in the case of Pietrylo v. 
          Hillstone Restaurant Group.  According to court documents, the 
          lawsuit was filed by two employees, Pietrylo and 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 (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 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 this 
          decision in September 2009.  (Pietrylo v. Hillstone Restaurant 
          Group, 2009 WL 3128420 (D.N.J. 2009).)
          
          In support of the bill the State Building and Construction Trade 
          Council of California notes:

               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.

          The American Federation of State, County and Municipal Employees 
          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 








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          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."
           
           
           Analysis Prepared by  :  Drew Liebert / JUD. / (916) 319-2334 


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