BILL ANALYSIS Ó AB 1844 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1844 (Campos) As Amended August 22, 2012 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |73-0 |(May 10, 2012) |SENATE: |29-5 |(August 28, | | | | | | |2012) | ----------------------------------------------------------------- Original Committee Reference: L. & E. ----------------------------------------------------------------- | | | | | ----------------------------------------------------------------- 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. AB 1844 Page 2 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 AB 1844 Page 3 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 AB 1844 Page 4 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 AB 1844 Page 5 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 FN: 0005450