BILL ANALYSIS �
AB 25
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Date of Hearing: April 24, 2013
ASSEMBLY COMMITTEE ON PUBLIC EMPLOYEES, RETIREMENT AND SOCIAL
SECURITY
Rob Bonta, Chair
AB 25 (Campos) - As Amended: March 14, 2013
SUBJECT : Employment: social media.
SUMMARY : Seeks to clarify the Legislature's intent last year
that the prohibition barring employers from requiring or
requesting an employee or prospective employee to disclose their
private username or password for the purpose of accessing their
personal social media accounts applies to both public and
private employers. Specifically, this bill :
1)Prohibits public employers 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 content.
2)Defines, for the purposes of this chapter, "public employer"
as the state, a city, a county, or a district.
EXISTING LAW :
1)Prohibits an 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 content.
2)Under the California Fair Employment and Housing Act, limits
the information potential employers and potential housing
providers can request of applicants.
3)Provides, in the Fourth Amendment to the U.S. Constitution,
that "the right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or Affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized."
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FISCAL EFFECT : Unknown.
COMMENTS : According to the analysis prepared by the Assembly
Judiciary Committee, "Last year this Committee unanimously
passed the author's AB 1844, which ultimately was approved by
the Legislature with bipartisan broad support and signed by the
Governor. That bill prohibits an employer from requiring or
requesting an employee or job applicant to disclose a username
or password for the purpose of accessing his or her personal
social media, to access his or her personal social media in the
presence of the employer, or to divulge any personal social
media content. When that bill proceeded through the
Legislature, it was assumed in the legislative analyses that the
measure was intended to apply to both public and private
employers. However after the bill was chaptered, the author was
advised that current case law requires the Legislature to
explicitly state that such measures, when placed in the Labor
Code, are intended to apply to public as well as private
employers. Although this interpretation may be disputed, and
there are many Labor Code provisions that do not explicitly
state their application to public employees but are nevertheless
understood to apply equally to public and private employers,
this bill merely seeks to do what was assumed the Legislature
did last year -- clarify that public employees as well as their
private counterparts are covered by this important consumer
privacy protection."
According to the author, "AB 25 seeks to protect the privacy
rights of public employees and those seeking jobs in the public
sector. Employers are increasingly asking, and sometimes
requiring employees or applicants to provide access to their
social media and online profiles. This is a tremendous invasion
of privacy. Asking for this information is akin to requiring
someone show you their personal photo album or allowing you to
eavesdrop on their private conversations. Simply because
personal information is more readily available than in the past
doesn't open the door to employers' demands to have access to
it. Perhaps most importantly, the tweets, posts, or profile of
an individual are no indication of whether or not they are
qualified for a position."
California Professional Firefighters, the state council of the
International Association of Firefighters, representing over
30,000 career firefighters and emergency medical personnel
statewide, offers its support of AB 25 and believes, consistent
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with existing provisions under the law, public employers,
"including those that employ California's state and local
government firefighters," should be prohibited from requiring or
requesting an employee or applicant for employment to disclose
their personal social media.
Supporters also state, "Constitutional rights to privacy are
violated when an employer demands that a prospective employee
provide passwords meant to protect date stored on a computer.
The practice of asking interviewees to provide their passwords
sets up an incredibly imbalanced sense of trust between
employers and staff. In general, the interview process includes
a background check, a request for references, and an interview
questionnaire about one's background, record, and experiences.
To ask for a Facebook password implies that the company does not
trust you, and ignores the very real and very damaging long-term
costs to organizational culture, employee retention, and
managerial trust."
The California Police Chiefs Association (CPCA) wrote the
Committee in strong opposition. Amongst other things, CPCA
states that AB 25 will undermine law enforcement's ability to
screen and monitor the activities of its personnel, writing in
part that, "Persons in law enforcement have positions of
incalculable trust and power in our communities: Front-line
officers literally have the authority to deprive a person of
his/her freedom, use force when appropriate and even take a life
under certain circumstances. Non-sworn personnel have access to
information and records of citizens that has the potential of
being diverted to inappropriate use.
"It is for these reasons that law enforcement agencies conduct
the most thoroughly of scrutinizes prior to hiring a person into
their agency. That scrutiny and oversight continues even after
the individual is hired and vested with the range of authority
and access to information that is not available to the general
public."
This bill was also heard in the Assembly Judiciary Committee on
April 16, 2013, where it passed out on an 8 to 2 vote.
In response to the amendment requested by the CPCA, the Assembly
Judiciary Committee analysis points out that background
investigation screening tools of prospective law enforcement
personnel are already extensive. As it stands, law enforcement
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requires prospective employees to submit to an aggressive
background investigation process to protect public safety in
order to gain employment as a public safety officer, which may
include completion of a detailed history statement, submission
to a polygraph, and other requirements.
The Assembly Judiciary Committee also noted that not only was
the amendment requested by the CPCA was a very broad exclusion
for public employee privacy rights, it would also likely be
found to be per se unconstitutional.
Finally, the Assembly Judiciary Committee states that the
requested exemption clearly appears to open up a potential
"slippery slope," stating, in part, "Exempting a broad number of
public employees in law enforcement from the law's privacy
protections would also appear to create a substantial risk that
such an exemption would inevitably, and likely quickly, lead to
many other public employers seeking similar exemptions from the
law's privacy protections, such as teachers and social workers,
and perhaps many others, on the grounds that many if not most
public employees work in jobs that could affect public safety."
Pursuant to the Assembly Judiciary Committee's rules and
tradition, should this bill pass and face subsequent amendments
the author has agreed to bring the bill back for another hearing
and further consideration.
PRIOR LEGISLATION :
AB 1844 (Campos), Chapter 618, Statutes of 2012, prohibits an
employer from requiring or requesting an employee or prospective
employee to disclose the username or password for the purposes
of accessing their personal social media account.
SB 1349 (Yee), Chapter 619, Statutes of 2012, prohibits public
and private postsecondary educational institutions from
requiring or requesting students, prospective students, or
student groups to disclose, access, or divulge personal social
media.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union of California
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American Federation of State, County and Municipal Employees
Association for Los Angeles Deputy Sheriffs
California Labor Federation
California Professional Firefighters
California School Employees Association
California Teachers Association
Consumer Federation of California
Glendale City Employees Association
Los Angeles Police Protective League
Los Angeles Probation Officers' Union
Organization of SMUD Employees
Privacy Rights Clearinghouse
Professional Engineers in California Government
Riverside Sheriffs' Association
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
Southwest California Legislative Council
Opposition
California Association of Highway Patrolmen (CAHP)
California Police Chiefs Association
California Probation, Parole, and Correctional Association
California State Sheriffs' Association
Chief Probation Officers of California
Commission on Peace Officer Standards and Training
Analysis Prepared by : Karon Green / P.E., R. & S.S. / (916)
319-3957