BILL ANALYSIS �
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THIRD READING
Bill No: AB 25
Author: Campos (D)
Amended: 5/1/13 in Assembly
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 5-0, 6/12/13
AYES: Monning, Wyland, Leno, Padilla, Yee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 63-8, 5/16/13 - See last page for vote
SUBJECT : Employment: social media
SOURCE : Author
DIGEST : This bill specifies 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 defines "employer" as the state, a city,
a county, a city and county, or a district.
ANALYSIS :
Existing law:
1.Prohibits an employer from requiring or requesting an employee
or applicant for employment to disclose a username or password
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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 "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.
3.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.
4.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.
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 section.
6.Does the following with regards to legal employment practices:
A. 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.
B. 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.
C. Restricts the use, with some exceptions, of credit
information for employment purposes.
D. Prohibits employers from requiring applicants to submit
to polygraph, lie detector, or similar tests as a condition
of employment.
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This bill specifies 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 defines "employer" as
the state, a city, a county, a city and county, or a district.
Comments
According to the Labor and Industrial Relations Committee
analysis: 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 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 followed suit.
When that bill proceeded through the Legislature, it was assumed
that the bill 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 existing 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 Sec. 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.
Prior Legislation
AB 1844 (Campos, Chapter 618, Statutes of 2012), 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 also prohibits an employer from discharging, disciplining,
threatening to discharge or discipline, or otherwise retaliating
against an employee or applicant for not complying with an
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employer request or demand violating these provisions.
SB 1349 (Yee, Chapter 619, Statutes of 2012), 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 6/28/13)
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 Society of Association Executives
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 : (Verified 6/28/13)
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Chief Probation Officers of California
ARGUMENTS IN SUPPORT : According to the author's office, this
bill seeks to protect the privacy rights of public employees and
those seeking jobs in the public sector. The author's office
argues that employers are increasingly asking, and sometimes
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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's
office 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
(Campos, Chapter 618, Statutes of 2012), 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 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.
ARGUMENTS IN OPPOSITION : 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.
ASSEMBLY FLOOR : 63-8, 5/16/13
AYES: Achadjian, Alejo, Ammiano, Atkins, Bloom, Blumenfield,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Cooley, Dahle, Daly,
Dickinson, Donnelly, Eggman, Fong, Fox, Frazier, Garcia,
Gatto, Gomez, Gordon, Gorell, Gray, Hagman, Hall, Roger
Hern�ndez, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Medina, Mitchell, Mullin, Muratsuchi, Nazarian, Nestande, Pan,
Patterson, Perea, V. Manuel P�rez, Quirk, Quirk-Silva, Rendon,
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Salas, Skinner, Ting, Torres, Waldron, Weber, Wieckowski,
Williams, Yamada, John A. P�rez
NOES: Conway, Beth Gaines, Jones, Maienschein, Mansoor, Olsen,
Wagner, Wilk
NO VOTE RECORDED: Allen, Bigelow, Grove, Harkey, Holden,
Melendez, Morrell, Stone, Vacancy
PQ:ej 6/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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