What’s Your Login?: Legal Protection Against Employers Requesting Or Requiring Employee’s Social Media Passwords
In September 2012, California Governor Jerry Brown signed Assembly Bill 1844 into law. Assembly Bill 1844 served to, “prohibit 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. 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 a request or demand by the employer that violates these provisions.” [i.] The bill eventually became §980 of the California Labor Code. [ii.]
This legislation is crucial because, while it may be useful for employers to view social media presence and profiles to assess the behavior of current or potential employees, it is unwarranted for employers to request or demand login access to that social media account. It is a violation of an individual’s privacy for an employer to ask for the password to his social media account. Social media as defined in §980 is, “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.” [iii.] An employer having access to an employee’s electronic videos, photographs, blogs, and messages, where the employee has taken steps to make them private or only available to pre-selected friends and contacts, is tantamount to the employer asking an employee to hand over their journal or diary. And, when employers do this they put the employee in an impossible Catch-22: he can refuse and anger his employer or he can acquiesce and allow the employer to discover something disagreeable. Further, if an employer has an employee’s social media login information he could make posts and send messages acting as the employee or use it to sift through the social media account to find a reason to fire the employee where one doesn’t really exist.
Critics may fear this legislation will have unintended overreaching effects by prohibiting employers from accessing devices and accounts that they have every right to. However, §980 accounts for this situation by including subsections (c) and (d) which clarify “(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.” [iv] If the employer has legal justification for an investigation or if the device is issued by the employer, the employer still has every right to ask for social media account information.
By enacting this statute, the California Legislature and Governor Brown joined a larger group of state legislatures and government officials addressing this situation. The Maryland Legislature included §3-712 into its Code of Labor and Employment, which expressly prohibits employers “from requiring disclosure of employee user names or passwords to personal accounts or services.” [v.] The Attorney General of the United States, Eric H. Holder Jr., announced that two Democratic senators requested he look into whether an employer who asked for a Facebook password violated federal law. [vi.] This legislation, and other similar legislation and policies are a necessary and constructive step toward protecting employee’s privacy in the employer-employee relationship.
[i.] LABOR AND EMPLOYMENT—SOCIAL MEDIA—RULES AND REGULATIONS, 2012 Cal. Legis. Serv. Ch. 618 (A.B. 1844) (WEST)
[ii.] CAL. LAB. CODE §980 (West 2013).
[v.] MD. CODE ANN., LAB. & EMPL. § 3-712 (West 2013).
[vi.] Senators Question Employer Requests for Facebook Passwords. The NEW YORK TIMES (March 25, 2012), http://www.nytimes.com/2012/03/26/technology/senators-want-employers-facebook-password-requests-reviewed.html?_r=1& (last visited Nov. 26, 2013).