To access or not to access employees’ (or job candidates’) social media accounts? It’s a tricky — and risky — question for employers.
The reason: The rise of social media in the workplace has far outpaced government rulemaking on what is and isn’t allowed when accessing employee or job candidate info on social websites.
We recently reported on what the feds’ Stored Communications Act does and doesn’t allow. But there are two problems with leaning on that law alone for guidance: It wasn’t written with social media in mind, and it doesn’t cover various state laws that govern what employers can and can’t do.
New comprehensive guide
The news isn’t all bad, however. The employment law experts at the law firm Seyfarth Shaw LLP have created a social media guide so good we had to share it with you.
It’s called “Social Media Privacy Legislation Desktop Reference: What Employers Need to Know.”
If checking on employee or job candidate social activity is part of your regular routine, it would be wise to consult this guide.
Here’s what the guide provides, according to Seyfarth:
Describes the content and purpose of the various states’ new social media privacy laws.
Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each statute.
Provides an easy-to-use chart listing on one axis the states which have enacted social media privacy legislation, and on the other, whether each state’s law contains one or more key features.
Offers our thoughts on the implications of this legislation in other areas, including technological advances in the workplace, trade secret misappropriation, bring your own device issues and concerns, social media discovery, federal law implications, and conflicts of laws.
Concludes with some best practices to assist companies in navigating this challenging area.
Here’s a snippet from Page 6 of the guide, which covers California law:
General overview: On September 27, 2012, Governor Brown signed Assembly Bill 1844, which regulates employers’ ability to demand access to employees’ or prospective hires’ personal social media accounts. The law went into effect on October 1, 2012.
What’s prohibited: for employee and applicant personal accounts, the requested or required (i) turnover of account login, (ii) employer access, and (iii) disclosure of account content. Retaliation against employee or rejection of applicant for refusal is also prohibited.
What’s allowed: reasonable-belief investigation into employee misconduct (and use of the information is limited to that investigation); mandatory login turnover to access employer-owned device.
What’s the remedy: Possible PAGA claims or Bus. & Prof. Code § 17200 claims.
Special notes: no definition of personal account; no mandatory Labor Commission investigation or enforcement of alleged violations.