BILL ANALYSIS Ó
AB 1844
Page 1
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
FN: 0005450