February 15, 2018    |    By

California Employee Privacy Law And Social Media: Navigating The Minefield

As a business owner, it is important to know the do’s and don’ts of the hiring process to protect the company from liability. With social media taking over the Internet, boundaries can become a bit blurred with what can be requested of a potential employee before onboarding them into your company. Knowing exactly who you are interviewing can seem impossible with today’s social media technology. Different people create different online personas for their private accounts. This makes it seem more difficult to have a controlled hiring process without knowing who your potential employees are in and out of the office.

Social media privacy rights have been brought into question for many years, and the public has seemed to demand that they have the right to social media privacy. While some companies may agree or disagree, the state of California has seemed to agree that people should in fact have the right to privacy when it comes to their personal social media accounts and whether or not employers should have access.  With that being said, the question remains are companies legally allowed to meet both of those people (physical and online persona) during or after the interview process has begun?

California privacy laws generally prohibit private and public employers from requesting and/or demanding usernames and passwords to access any personal social media accounts that employees or potential employees may have. Not only does California prohibit these requests, but it also prohibits employers from asking for the interviewee to show them their personal account themselves, as well. This doesn’t necessarily mean that potential hires can post whatever they want, but unless they violate any terms of an agreement with the company, they have quite a bit of free reign with what they privately post.

Breaking Down The Two Social Media Bills

In recent years the state of California enacted two bills related to social media; 2012 ASsembly Bill 1844 and 2012 Senate Bill 1349. These bills that were created have different privacy laws that will protect potential employees’ personal and private social media accounts from being used as a means of an onboarding or termination process. By law, business owners in the state of California cannot request or demand that employers give them personal social media account information unless a case of harassment, misconduct, or violation of company policy or applicable law arises.

It is also important to note that if any investigation/situation does arise, an employer is still unable to request or demand any personal password information, but can only request specific content that pertains to the current investigation. These privacy laws put into focus that privacy rights should not only be held in office but online as well. Providing such a law enabling privacy rights allows for potential employees to feel safe in that their entire life and personal living situations are not being used as a means of whether or not they could or should be employed.

This is great news for anyone searching for a job, but could be frustrating for companies who really want to dig into the lives of their employees. However, everyone should have the right to their own privacy, especially online, where it seems that everything is publically filtered. This simply means that companies should put their focus into making interviews more thorough to really get to know the interviewees and make sure that all qualifications are met prior to and during the interview process.

California Assembly Bill 1844

According to the 2012 Assembly Bill 1844 which adds chapter 2.5 to Part 3 of Division 2 of the Labor Code, entitled Employer use of Social Media, employers are prohibited from discharging or punishing an employee for refusing to give their personal username and password information to the company. Any violations to this labor code section lead to enforcement action by the Labor Commissioner, including investigations of employee complaints, hearings, and determination on such matters.

In the 2012 Assembly Bill 1844, it is also states that social media includes, but is not limited to, the following:

  • Videos
  • Still photographs
  • Blogs
  • Video blogs
  • Podcasts
  • Instant and text messages
  • Email
  • Online services or accounts
  • Internet web site profiles or locations

2012 California Senate Bill 1349

The 2012 Senate Bill 1349, which adds Chapter 2.5 to Part 65 of Division 14 of Title 3 of the Education Code, entitled Social Media Privacy, states that public and private post-secondary educational institutions and their employees and representatives, should not require or request a student, or prospective student to do the following:

  • Disclose username/password to access personal social media accounts
  • Access personal social media account sin the presence of institution’s employee or representative
  • Divulge any personal social media information

Postsecondary institutions cannot suspend, expel, discipline, or threaten adverse action for refusing to give personal social media account information.

Important to note: This Bill does not include high school education systems. Therefore, a high school student accused of any social media misconduct may be asked to give up username or password information to authorities and/or representatives of the school.

What Do These Social Media Laws Mean For Employers?

Since these social media laws have been put into place, employers have been asking themselves; what does this mean for us? Simply put, it means that unless a violation of company policy or applicable law occurs, they cannot request or demand personal social media information. This doesn’t apply to posts made to company social media pages. Therefore, without a legitimate reason for investigation, an employee’s personal social media account can and should remain a private and unseen account by the company itself. This helps the company avoid liability for discrimination or unlawful invasion of privacy claims.

Invasion Of Privacy Claims

Privacy settings on social media can impact determinations regarding privacy claims. If a potential employee has inappropriate posts on their particular social media site with a public view setting, it becomes ‘free game’ for an employer to view and question the employee on whatever may be posted. However, according to California Anti-Phishing Act of 2005, it is unlawful for a company to fraudulently disguise its identity online in an effort to solicit, request, or take any action to induce anyone to provide identifying information. Since California has laws in place to limit employers’ use of lawful off-duty conduct and private social media information, this makes the hiring process fairer in that most things on personal social media will not affect an applicant’s reputation and consideration for a position. Relevant law could also create potential liability for:

  • Intrusion upon seclusion
  • Public disclosure of private facts that harm one’s reputation or financial wellbeing
  • Claims related to public humiliation of an individual such as defamation
  • Unlawfully use of another’s name and/or information for one’s own benefit

State Law Privacy Claims

When an employer is conducting an interview, the information that they request and receive from the potential employee needs to come directly and solely from that interview process. Any background check information should be gathered either by a third-party company or an employee who has nothing to do with the hiring process. If the company gathers or relies on information from an applicant’s personal social media pages in the hiring process the applicant could argue that the company has violated applicable law.

Fair Credit Reporting Act

According to Federal Trade Commission, The Fair Credit Reporting Act (FCRA) promotes the accuracy, fairness and privacy of information in the files of the consumer reporting agencies. If any information gathered from employee or applicant consumer reports is used to take adverse employment action the employer must follow steps set out in the FCRA, including timely pre-adverse action notice of its intent to take the adverse action and the report on which it is basing its decision, as well as a summary of the employee or applicant’s rights under the FCRA. If the employee or applicant does not dispute or correct the information relied upon, and the employer ultimately takes adverse action, it must supply a follow up adverse action notice to the employee or applicant providing, among other things, the contact information of the consumer reporting agency that supplied the information. Although access to consumer reports is limited, individuals have the right to access, review and dispute the accuracy or completeness of their own personal report.

Any company that sees background information posted online should take the correct steps to ensure that the information available is accurate and pertains to the correct person. Companies are also obligated to give employees or applicants advance notice of any adverse action taken based on information gathered from consumer reports or other background checks. It is imperative that the documentation found that could potentially be held against an employee directly relates to that employee, otherwise the situation can become messy in that the company could be held liable for false accusations held against an employee or potential employee; know who you are investigating and/or accusing before making any official statements or determinations.

Local City “Ban the Box” Ordinances

When it comes to criminal background checks, most companies want to know if their potential hires have had any trouble or run ins with the law prior to onboarding. However, California recently enacted Assembly Bill 1008 to “Ban the Box”. This prohibits most public and private employers from requesting that their applicants disperse information about any criminal conviction until after a conditional offer of employment has been made.

Don’t Forget Terms Of Service Violations

Business owners and employers should always be aware of the terms of service agreements that are stated within creating any social media account. Becoming educated on the terms of service and making sure that they are read thoroughly is important being that most users click the “I agree” button to simply get the account created without reading through the privacy policy. Each social media app or site may have different terms of service which may or may not allow a plaintiff to argue that their privacy agreements have been violated by their (potential) employers.

Federal And State Discrimination Claims

Use of social media as a source for background checks for means of employment can get very tricky, which is why the state of California has put laws into place to protect employees and applicants from this type of invasion of privacy. Information inappropriately collected from personal social media pages can be said to have discriminatory effects and lead to claims of discrimination during the interview and hiring process within a company. Using sites such as LinkedIn and Facebook can provide a company with solid information about the potential hire, however, it is arguable that companies may use such information improperly by discriminating against an individual based on gender, race, ethnicity, or other protected classes. California laws protect employees and generally prevent employers from using social media as a means of hiring and firing. These laws seek to protect both parties by preventing privacy invasion and unfair or illegal onboarding procedures.

Key Takeaways

When considering the information provided in this article, it is important to remember, these laws were put into place to make the process of employment easier for everyone to have an equal opportunity as well as to protect employers from liability. Although these laws seem to go to great lengths to protect the privacy of employees and applicants, this does not mean that a company may not investigate an employee’s personal social media pages if the employee violates company policy or applicable law, and the account is reasonably related to legitimate investigation. It is important to take these laws seriously to avoid company lawsuits and be sure that the onboarding process goes as smoothly as possible.

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This blog post is intended for informational purposes only and does not constitute legal advice. No attorney-client relationship is created between the author and reader of this blog post, and its content should not be relied upon as legal advice. Readers are urged to consult legal counsel when seeking legal advice.

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