BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 12, 2013 2013-2014 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 25
Author: Campos
As Introduced/Amended: May 1, 2013
SUBJECT
Employment: social media
KEY ISSUE
Should last year's law barring employers from requiring or
requesting employees to disclose their private username and
passwords to access their personal social media accounts be
clarified to specify that it applies to public as well as
private employers?
ANALYSIS
Existing law 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. (Labor Code
�980)
Existing law also:
Defines "social media" as an electronic service or
account, or 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.
Specifies that nothing affects an employer's existing
rights and obligations to request personal social media
reasonably believed to be relevant to an investigation of
allegations of employee misconduct or violation of
applicable laws and regulations, as specified.
Specifies that nothing 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.
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 section.
Existing law, with regards to legal employment practices, does
the following:
Protects employees, both prospective and current,
against employment discrimination when it involves unfair
treatment because of a person's race, color, religion, sex,
national origin, age, disability or genetic information.
(Government Code �12940)
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)
Restricts the use, with some exceptions, of credit
information for employment purposes. (Labor Code �1024.5)
Prohibits employers from requiring applicants to submit
to polygraph, lie detector, or similar tests as a condition
of employment. (Labor Code �432.2)
This Bill would specify 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 social media accounts applies to both
public and private employers. Specifically, the bill would
Hearing Date: June 12, 2013 AB 25
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
define "employer" as the state, a city, a county, a city and
county, or a district.
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. 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.
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, employers may create and adopt a policy
regarding the use of social media as it relates to their
employment site(s); however, existing law 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. Need for this bill?
To address these concerns, the Legislature approved - and the
Governor signed, legislation last year which 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
Hearing Date: June 12, 2013 AB 25
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
any personal social media content. California was one of the
first states in the country to enact a social media privacy
statute. Today, many more states have following suit.
When that bill proceeded through the Legislature, it was
assumed that the measure was intended to apply to both public
and private employers. However after the bill was chaptered,
the author learned that there is some ambiguity in current
case law as to whether the Legislature needs to explicitly
state that such measures, when placed in the Labor Code, are
intended to apply to public as well as private employers.
Thus although Labor Code �980 could be found to apply to
public employers, this bill merely seeks to do what was
assumed it did last year -- clarify that public employees as
well as their private counterparts are covered by this
important consumer privacy protection.
3. Background Investigation Screening Tools of Law Enforcement
Personnel
The current hiring procedure for law enforcement personnel
requires prospective employees to submit to an aggressive
background investigation process aimed at protecting public
safety by ensuring qualified individuals are hired. The
Assembly Judiciary Committee notes, as an example, that the
hiring process for entry-level police officer candidates for
the City of Roseville, in Placer County, consists of a
background investigation that includes completion of a
detailed personal history statement in the applicant's own
handwriting, submission of original copies of birth
certificates, high school and college transcripts, and an
interview by a background investigator. In addition, the
applicant is required to submit fingerprints and submit to a
CVSA (computerized voice stress analysis test) similar to a
polygraph.
At the Los Angeles Police Department, law enforcement
applicants are required to complete a personal history form as
part of the background investigation portion of the selection
process, which includes providing detailed information
regarding prior employment, past residences, education,
military service, personal information related to finances
Hearing Date: June 12, 2013 AB 25
Consultant: Alma Perez Page 4
Senate Committee on Labor and Industrial Relations
including current assets and liabilities, tattoo information,
marital status, children, a list of family members that will
be contacted and a list of seven references, not including
family members, that have known the applicant for at least two
years.
Opponents of the measure argue that this bill would severely
limit law enforcement's ability to perform the necessary
background investigations required for the hiring of qualified
law enforcement personnel. They are asking for an amendment
exempting any position within a criminal justice agency from
the provisions of the bill. Given the extensive background
investigation process already allowed for the vetting of
applicants for law enforcement positions, it would appear that
this request would be unnecessary. The rigorous background
investigation tools already in place should reveal any
existing discriminatory tendencies or other dangerous
propensities of prospective applicants to law enforcement
agencies.
4. Proponent Arguments :
According to the author, this bill seeks to protect the
privacy rights of public employees and those seeking jobs in
the public sector. The author argues that employers are
increasingly asking, and sometimes requiring employees or
applicants to provide access to their social media and online
profiles and argues that this is a tremendous invasion of
privacy. In addition, the author states that these tweets,
posts, or profile of an individual are no indication of
whether or not they are qualified for a position.
The author has introduced this bill as a follow-up to AB 1844
from last year which prohibits employers from requiring
employees and applicants to disclose social media account
information. Unfortunately, according to the California
Supreme Court, unless Labor Code provisions are specifically
made applicable to public employers, they apply only to
employers in the private sector (Johnson v. Arvin Edison Water
Storage Dist. (2009) 174 Cal.App.4th 729, 733). As AB 1844
did not expressly include public employers, public employees
are not protected. This bill remedies this situation by
Hearing Date: June 12, 2013 AB 25
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
including all employees, public and private, in the
protections previously approved. The author argues that it
simply makes good sense to ensure state employees' privacy by
extending the same prohibitions currently in place for
private-sector employees.
5. Opponent Arguments :
According to opponents, this bill would severely limit law
enforcement's ability to perform the necessary background
investigations required for the hiring of qualified law
enforcement personnel. They argue that, in addition to sworn
peace officer position, impacted non-sworn positions may
include labeling and maintenance of evidence, transferring
records, access to databases or cash and many other critical
functions. Opponents want to ensure that departments can
appropriately screen applicants as necessary and are
requesting an amendment that would exempt any position within
a criminal justice agency from the provisions of the bill.
6. Prior Legislation :
AB 1844 (Campos) of 2012: Chaptered
AB 1844 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,
as specified. This bill would also prohibit an employer from
discharging, disciplining, threatening to discharge or
discipline, or otherwise retaliating against an employee or
applicant for not complying with an employer request or demand
violating these provisions.
SB 1349 (Yee) of 2012: Chaptered
SB 1349 prohibits public and private postsecondary educational
institutions, and their employees and representatives, from
requiring or requesting a student, prospective student, or
student group to disclose, access, or divulge personal social
media information, as specified.
SUPPORT
Hearing Date: June 12, 2013 AB 25
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
American Federation of State, County and Municipal Employees,
AFL-CIO
Association for Los Angeles Deputy Sheriffs
Association of California State Supervisors
California Federation of Teachers
California State Retirees
California Teachers Association
Consumer Federation of California
Glendale City Employees Association
Los Angeles Police Protective League
Organization of SMUD Employees
Riverside Sheriff's Association
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Clara County Office of Education
Santa Rosa City Employees Association
OPPOSITION
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Chief Probation Officers of California
Hearing Date: June 12, 2013 AB 25
Consultant: Alma Perez Page 7
Senate Committee on Labor and Industrial Relations