Amended in Senate August 21, 2014

Amended in Assembly May 1, 2013

Amended in Assembly March 14, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 25

Introduced by Assembly Member Campos

December 3, 2012

An act to amend Section 980 of begin insert , and to add Section 980.1 to, end insert 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. begin insert 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. end insert 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:

begin delete

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.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 980 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

980.  

(a) As used in this begin delete chapter, “social end delete begin insert chapter: end insert

begin insert

(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.

end insert

begin insert (2) end insert begin insert   end insert begin insert “Social end insert 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.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 980.1 is added to the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

begin insert 980.1. end insert   

(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.

end insert

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

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.