California Becomes Third State To Ban Employers From Requesting Employee Social Media Passwords

by Sayema Hameed

On September 27, 2012, California Governor Jerry Brown signed into law A.B. 1844 and S.B. 1349, two bills which protect the privacy of employee and student social media, respectively.  On the enactment of these two bills, Governor Brown said:

The Golden State is pioneering the social media revolution and these laws will protect all Californians from unwarranted invasions of their personal social media accounts.

S.B. 1349, entitled “Social media privacy: postsecondary education” (codified at Education Code Sections 99120-99122), prohibits public and private higher educational institutions from requiring a student, prospective student, or student group to disclose personal social media usernames, passwords, or content.  The new law also prohibits the educational institutions from suspending, expelling, disciplining, or threatening to take any of those actions, for refusing to comply with such a demand.  California is the second state to pass a law protecting the social media information of students, following Delaware.

A.B. 1844, entitled “Employer Use of Social Media” and codified at Labor Code Section 980, prohibits employers from requiring an employee or job applicant to disclose his or her social media username or password.  This new law also prohibits an employer from “shoulder surfing,” i.e. requiring an employee or job applicant to access a personal social media account in the employer’s presence.

The new law also prohibits an employer from discharging, disciplining, threatening or otherwise retaliating against an employee or job applicant for not complying with the employer’s demand. The law does permit an employer to obtain passwords or other information needed to access employer-issued electronic devices.

The NLRB Report On Employer Social Media Policies: What’s Unlawful and What Works

by Sayema Hameed

Employee use of social media is a big topic these days.  It is increasingly common to hear news of an employee getting fired for posting unfavorable comments about his or her employer on Facebook and other social media websites.  As a result, in August 2011 and January 2012, the Acting General Counsel of the National Labor Relations Board Acting (“NLRB”) issued reports analyzing cases of employee termination due to social media use.

On May 30, 2012, the NLRB issued a third report on social media.  This report focuses exclusively on employer social media policies and provides specific examples of what is lawful and unlawful under the National Labor Relations Act (“NLRA”).