BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 25, 2012 20011-2012 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: SB 1349
Author: Yee
As Introduced/Amended: March 27, 2012
SUBJECT
The Social Media Privacy Act: postsecondary education and
employment
KEY ISSUES
Should the Legislature prohibit a public or private
postsecondary educational institution from requiring a student
or prospective student from disclosing personal social media
information?
Should the Legislature prohibit a public or private employer
from requiring an employee or prospective employee from
disclosing personal social media information?
PURPOSE
To establish prohibitions on requirements to disclose
information on an individual's personal social media accounts.
ANALYSIS
Existing federal and state law protects employees, both
prospective and current, against employment discrimination when
it involves unfair treatment because of a person's race, color,
religion, sex (including pregnancy), national origin, age,
disability or genetic information. Existing law also protects
employees against harassment by managers, co-workers, or others
in the workplace and against retaliation for complaining about
discrimination, filing a charge of discrimination, or
participating in an employment discrimination investigation or
lawsuit.
Existing law prohibits employers from discriminating,
discharging or refusing to hire an employee based on an
employee's lawful conduct during nonworking hours away from the
employer's premises. (Labor Code §96 & 98.6)
Both federal and state law , through the federal Fair Credit
Reporting Act (FCRA) and the California Consumer Credit
Reporting Agencies Act (CCRAA), regulates the collection,
dissemination and use of personal and credit information
gathered by consumer credit reporting agencies. Existing law
restricts the use, with some exceptions, of credit information
for employment purposes. (Labor Code §1024.5)
Existing law further regulates anyone who collects, assembles,
evaluates, compiles, reports, transmits, transfers, communicates
information on a consumer's character, general reputation,
personnel characteristics, or mode of living, for employment
purposes, which are matters of public record. (Civic Code
§1786.53)
This Bill 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, this bill would:
1. 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; or
Provide the institution or employer with access to
any content of that account.
Hearing Date: April 25, 2012 SB 1349
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
1. 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.
COMMENTS
1. Background on Social Media in the Workplace:
The use of technology for personal and business purposes has
exploded in recent years, and with that explosion comes
challenges. The use of social media for communication through
programs such as Facebook, Twitter, LinkedIn and MySpace, has
become a phenomenon for people of all ages. Information that
was once broadcast by word or written media is now instantly
broadcast around the world, unfortunately, to the detriment of
some employers and employees.
The use of social media in the workplace can present several
problematic situations around issues of free speech,
discrimination of current and potential employees, harassment,
and even termination. Although existing law protects current
and potential employees against discrimination and/or
retaliation in the workplace, nothing specifically addresses
the issues that arise with the use of information obtained
through social media sites.
For pre-employment purposes, an employer must make hiring
decisions without regard to race, age, gender or familial
status, however, a quick search on Facebook could give the
employer this information making the employer liable for
potential hiring discrimination. For an individual that is
already employed, the National Labor Relations Act (NLRA)
prohibits employers from restricting the rights of employees
to engage in concerted activities, such as discussions about
wages, work conditions or terms of employment. Employers may
create and adopt a policy regarding the use of social media as
it relates to their employment site(s); however, existing law
Hearing Date: April 25, 2012 SB 1349
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
prevents employers from intruding into an employee's legal off
duty conduct. Such policies can restrict the use of social
media at work with company equipment but cannot prevent
employees from discussing the terms and conditions of their
employment with other employees using their own personal
devices on non-working time.
2. Social Media in the News:
Recent articles have reported on cases at the national level
showing a trend of educational institutions and employers that
require current and potential students and employees to
divulge their social media user names and passwords.
According to an msnbc article, "In Maryland, job seekers
applying to the state's Department of Corrections have been
asked during interviews to log into their accounts and let an
interviewer watch while the potential employee clicks through
wall posts, friends, photos and anything else that might be
found behind the privacy wall." (Govt. agencies, colleges
demand applicants' Facebook passwords, April 20, 2012)
According to the same article, "Student athletes in colleges
around the country also are finding out they can no longer
maintain privacy in Facebook communications because schools
are requiring them to "friend" a coach or compliance officer,
giving that person access to their "friends-only" posts."
Reports have also found that some schools are turning to
social media monitoring companies for software packages that
automate the task.
In the 2010 incident discussed in the article, the Maryland
Department of Public Safety and Correctional Services
requested that Robert Collins disclose his Facebook username
and password during a reinstatement interview following his
leave of absence for a death in the family. A complaint was
filed by the American Civil Liberties Union which stopped the
practice and instead made it voluntary. Lawmakers in Maryland
have recently passed (pending Governor's signature) a bill
that would prohibit employers from requiring that applicants
or employees disclose personal user names or passwords for any
personal account or service. While the Maryland legislation
is the first of its kind, lawmakers in several other states
Hearing Date: April 25, 2012 SB 1349
Consultant: Alma Perez Page 4
Senate Committee on Labor and Industrial Relations
have introduced legislation to limit employer access to social
media user names and passwords.
3. Need for this bill?
It is illegal for an employer to discriminate against an
employee or applicant on the basis of lawful conduct they
engage in during nonworking hours away from the employment
site. Examples of protected lawful conduct include exercising
free speech rights or engaging in political activities while
off-duty. Although existing law affords current and potential
employees with various protections against discrimination
and/or retaliation in the workplace, nothing specifically
prohibits the use of information obtained through social media
sites. This bill would prohibit a public or private employer
as well as a public or private postsecondary educational
institution from requiring, or formally requesting in writing,
the disclosure of user name or account passwords for a
personal social media account or to otherwise provide access
to any content of that account.
4. Staff Comment :
The use of social media has also created another avenue for an
employee to be potentially harassed by a co-worker. Not only
can an employee harass a co-worker in person at the work site,
the employee is now able to post harassing messages to a
co-worker's social media page during off-work hours. Current
law authorizes both employers and educational institutions to
investigate cases of misconduct or allegations of harassment.
As currently written, this bill could prohibit an employer
from accessing information that can aide in the investigation
of alleged incidents. Staff recommends that the author amend
the bill to address these circumstances.
5. Double Referral :
This bill prohibits actions by public and private
postsecondary educational institutions as well as public and
private employers. The education specific provisions of this
bill were previously discussed by the Senate Education
Committee before passing and referring the bill to this
Hearing Date: April 25, 2012 SB 1349
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
Committee for discussion of the employment related provisions.
6. Proponent Arguments :
According to the author, social media and other user based
online accounts have become a part of the social norm for
communication and while this has provided a useful avenue for
socialization and expression, it has also put employees, job
applicants and students at risk of having their privacy
violated by employers and schools. Unfortunately, the author
argues, there is a growing nationwide trend of employers who
are requiring user names and passwords to the social media
accounts of employees and job applicants as well as requiring
access to the social media content of the employer/applicants
personal account.
The author argues that while current law protects employees
from having to release information that could expose them to
discrimination, the law does not protect employees from
employers requiring them to turn over social media
information. Further, the author argues that often times the
content found within ones social media account contains
information that an employer would normally be prohibited from
obtaining such an applicant's religion, age, or sexual
preference. Yet, requesting a social media user name and
password is another creative attempt to bypass this law by
allowing a prospective employer to readily access this type of
information in violation of the law. They argue that gaining
this access is no different than reading a personal diary or
emails, or viewing personal home videos.
Proponents argue that an employer has no right to have access
to a prospective employee's private account information, but
yet, employers are attempting to circumvent this rule by using
coercive means, such as a job offer, to gain consent to search
through a prospective employee's private accounts. According
to proponents, in an economy in which jobs are difficult to
come by, employers hold the upper hand and California should
not allow employers to use intimidation to gain access to
information that they otherwise would not be legally entitled
to request. This bill would prohibit employers from requiring
Hearing Date: April 25, 2012 SB 1349
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
social media user name and passwords, or access to content on
an account, from employees and job applicants.
7. Opponent Arguments :
None received.
8. Prior and Related Legislation :
AB 1844 (Campos) of 2012: Awaiting Hearing in Assembly
Judiciary Committee
AB 1844 is similar to this bill in that it prohibits an
employer from requiring an employee or prospective employee to
disclose a user name or account password to access a personal
social media account. AB 1844 has been referred to the
Assembly Committees on Judiciary and Labor and Employment and
is currently awaiting hearing in the Assembly Judiciary
Committee.
AB 22 (Mendoza) of 2011: Chaptered
AB 22 established prohibitions, with some exceptions, on an
employer's ability to utilize consumer credit reports for
employment purposes.
SUPPORT
American Federation of State, County and Municipal Employees
California Employment Lawyers Association
California Faculty Association
California Public Interest Research Group
CalSmallBiz
Community United Against Violence
Consumer Action
Jewish Vocational Service - Los Angeles
National Center for Lesbian Rights
Privacy Rights Clearinghouse
OPPOSITION
None received
Hearing Date: April 25, 2012 SB 1349
Consultant: Alma Perez Page 7
Senate Committee on Labor and Industrial Relations
Hearing Date: April 25, 2012 SB 1349
Consultant: Alma Perez Page 8
Senate Committee on Labor and Industrial Relations