BILL NUMBER: AB 25	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 21, 2014
	AMENDED IN ASSEMBLY  MAY 1, 2013
	AMENDED IN ASSEMBLY  MARCH 14, 2013

INTRODUCED BY   Assembly Member Campos

                        DECEMBER 3, 2012

   An act to amend Section 980 of  , and to add Section 980.1 to,
 the Labor Code, relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 25, as amended, Campos. Employment: social media.
   Existing law prohibits a private employer from requiring or
requesting an employee or applicant for employment to disclose a
username or password for the purpose of accessing personal social
media, to access personal social media in the presence of the
employer, or to divulge any personal social media. Existing law
prohibits a private employer from discharging, disciplining,
threatening to discharge or discipline, or otherwise retaliating
against an employee or applicant for not complying with a request or
demand that violates these provisions.
   This bill would apply the provisions described above to public
employers, as defined.  Notwithstanding that, the bill would
allow law enforcement agencies to access social media accounts of a
new hire applicant or lateral   transfer applicant, as
defined, once during the background check for a position as a sworn
peace officer, if specified requirements are met. The bill would
provide that any information gathered or viewed about a new hire
applicant or 3rd party shall only be used for screening purposes and
shall not be used as the basis for any action against a new hire
applicant or 3rd party, as specified. The bill would also specify
that civil penalties are allowed against law enforcement agencies or
their employees, agents, or assigns who violate these provisions
regarding the use of social media information in hiring lateral
transfer applicants.  The bill would state that its provisions
address a matter of statewide interest and apply to public employers
generally, including charter cities and counties.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
   
  SECTION 1.    Section 980 of the Labor Code is
amended to read:
   980.  (a) As used in this chapter:
   (1) "Employer" means a private employer or a public employer. For
purposes of this chapter, "public employer" means the state, a city,
a county, a city and county, or a district.
    (2) "Social media" means an electronic service or account, or
electronic content, including, but not limited to, videos, still
photographs, blogs, video blogs, podcasts, instant and text messages,
email, online services or accounts, or Internet Web site profiles or
locations.
   (b) An employer shall not require or request an employee or
applicant for employment to do any of the following:
   (1) Disclose a username or password for the purpose of accessing
personal social media.
   (2) Access personal social media in the presence of the employer.
   (3) Divulge any personal social media, except as provided in
subdivision (c).
   (c) Nothing in this section 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 the social media is
used solely for purposes of that investigation or a related
proceeding.
   (d) Nothing in this section 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.
   (e) An employer shall not discharge, discipline, threaten 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 section. However, this section does not
prohibit an employer from terminating or otherwise taking an adverse
action against an employee or applicant if otherwise permitted by
law. 
   SECTION 1.    Section 980 of the   Labor
Code   is amended to read: 
   980.  (a) As used in this  chapter, "social  
chapter:  
   (1) "Employer" means a private employer or a public employer. For
purposes of this chapter, "public employer" means the state, a city,
a county, a city and county, or a district. 
    (2)     "Social  media" means an
electronic service or account, or electronic content, including, but
not limited to, videos, still photographs, blogs, video blogs,
podcasts, instant and text messages, email, online services or
accounts, or Internet Web site profiles or locations.
   (b) An employer shall not require or request an employee or
applicant for employment to do any of the following:
   (1) Disclose a username or password for the purpose of accessing
personal social media.
   (2) Access personal social media in the presence of the employer.
   (3) Divulge any personal social media, except as provided in
subdivision (c).
   (c) Nothing in this section 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 the social media is
used solely for purposes of that investigation or a related
proceeding.
   (d) Nothing in this section 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.
   (e) An employer shall not discharge, discipline, threaten 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 section. However, this section does not
prohibit an employer from terminating or otherwise taking an adverse
action against an employee or applicant if otherwise permitted by
law.
   SEC. 2.    Section 980.1 is added to the  
Labor Code   , to read:  
   980.1.  (a) The Legislature, in enacting this section, finds and
declares all of the following:
   (1) Sworn peace officers occupy a unique position in society as
protectors of public trust and guardians of our safety.
   (2) These positions can result in the officers exercising their
lawful powers of detainment, arrest, custody and, if necessary,
force, up to and including the use of deadly force.
   (3) Given these powers, extraordinary diligence must be exercised
in screening new hire applicants and lateral transfer applicants for
sworn peace officer positions to ensure that they meet the highest
possible standards, including viewing the applicants' social media
accounts.
   (b) Notwithstanding Section 980, a law enforcement agency may
access the social media accounts of the new hire applicant or lateral
transfer applicant during an interview or background investigation
of that new hire applicant or lateral transfer applicant for a
position as a sworn peace officer if all of the following conditions
are met:
   (1) The law enforcement agency has adopted and complied with a
written policy, consistent with this chapter, that controls the
manner in which it obtains social media information from new and
lateral transfer hires.
   (2) The law enforcement agency provides prior notice to the new
hire applicant or lateral transfer applicant regarding the
investigation of his or her social media accounts and the reasons
therefor, including the applicant's rights as set forth in this
section, and secures the prior written consent of the applicant.
   (3) The law enforcement agency shall not ask the new hire
applicant or lateral transfer applicant to disclose the password to
his or her social networking site or to retain the password if it is
disclosed.
   (4) The law enforcement agency may only request once during the
background process that the new hire applicant or lateral transfer
applicant access his or her social media accounts in the law
enforcement agency's presence. Nothing in this section shall allow
the law enforcement agency any additional access to the applicant's
social media information or access to an applicant's email, instant
messaging, text massaging, or other communications transmitted
bidirectionally between two or more parties that are intended to be
private conversation, or to gain further access to an applicant's
account. Nothing in this section shall allow the law enforcement
agency to utilize an applicant's social media pages to view
third-party personal information posted on social media accounts that
belong to persons other than the applicant. Nothing in this section
shall allow the law enforcement agency to utilize social media
information in connection with internal promotions of sworn peace
officers.
   (5) The social networking sites shall be accessed and viewed only
in the presence of the new hire applicant or lateral transfer
applicant, who shall be permitted to comment or explain the content
or context of any part of his or her social networking account.
   (6) The law enforcement agency shall not view, access, or record
information from emails, text messages, instant messages, or other
private electronic communications.
   (7) A law enforcement agency accessing the new hire applicant's or
lateral transfer applicant's information shall not access, retain,
or act upon information posted by a third party.
   (8) For purposes of this section, "new hire applicant" means any
person who has been admitted for training as a sworn peace officer
but has not yet received a basic POST or CPOST certificate, pursuant
to a program described in Section 13510.1 or 13601 of the Penal Code,
or who has received a basic POST or CPOST certificate but has never
been hired by a law enforcement agency.
   (9) For purposes of this section, "lateral transfer applicant"
means any person who has been hired as a sworn peace officer by a law
enforcement agency other than the one the applicant is applying to.
   (c) Information gathered or viewed, intentionally or
unintentionally, about a new hire applicant or third party, by a law
enforcement agency or its employee, agent, or assign, shall only be
used for the purpose of screening potential new hire applicants and
lateral transfer applicants, pursuant to this section. In no event
shall that information be used as a basis for any action against a
new hire applicant or third party, including, but not limited to,
administrative, civil, or criminal action.
   (d) A lateral transfer applicant shall be entitled to the same
remedies available to a public safety officer under subdivision (e)
of Section 3309.5 of the Government Code for any violation of this
section by a law enforcement agency, its employee, agent, or assign.

   SEC. 2.   SEC. 3.   Because of the
crucial privacy rights at issue and the growing abuse of those
rights, the Legislature finds and declares that this act addresses a
matter of statewide interest and applies to public employers
generally, including, but not limited to, charter cities and
counties.