Consistent with its constitutional right of privacy, California has statutory provisions that prohibit employers from invading the social media space of existing and prospective employees. With the advent of technology-based social media opportunities, snooping by employers has become more of an issue in the workplace.
While an employer may legitimately monitor communications by employees during work hours and while using employer-owned equipment, systems, and networks, there is no clear right to venture into private social media domains. Generally speaking, social media includes online networking services such as Facebook, Twitter, LinkedIn, Instagram, and Tumblr.
Employers have increasingly investigated the online presence of prospective employees, trying to learn as much as possible about the applicant. Some employers also want to see current employees’ social media information to find out what they may be saying about their jobs. Amazingly, some go so far as to request applicants/employees to provide their logon information for social media sites to gain full access to their personal communications.
California was one of the first states to pass a law prohibiting employers from requiring or even requesting access to applicants’ or employees’ social media information. This includes requiring the applicant/employee to log into an account with an employer representative present, or requiring the disclosure of personal social media content. California’s law applies to employees in the private sector.
The only exception to the prohibition is when an employer is investigating employee misconduct or violation of laws or regulations. In that case, the law specifies that social media information accessed or obtained may only be used for the purposes of the investigation or any related proceeding.
Employers are still free, however, to access information posted by applicants/employees on social media that is publicly available. In such situations, the applicant/employee has no expectation of privacy in the publicly posted information.
Sacramento, CA 95821