ROBERT Collins had applied for an officer’s position with the Maryland Department of Public Safety. Collins narrated that during the job interview, the human resources personnel interviewing him asked for his Facebook username and password. He was told that it was being done to verify that Collins, who was applying to be a state trooper, was not affiliated with any gangs. Collins said in an interview that he had felt violated when this happened.
This incident occurred in 2010. When it hit the news, speculation ran rampant as to the possible impact this practice may have on employees. If prospective employers make it a condition of employment to hand over your Facebook (or other social media) username and password, can they legally deny you employment if you refuse? Can your employer legally terminate you if you refuse them access to your social media accounts?
In a move to prevent unwarranted intrusion into employees’ social media accounts, California recently passed a law that prohibits employers from demanding user names, passwords or any other information related to social media accounts from employees and job applicants.
The law defines social media to include an electronic service or account, or electronic content, including videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or internet website profiles or locations.
The law states that an employer shall not require or request an employee or job applicant to do any of the following:
1) Disclose a username or password for the purpose of accessing personal social media.
2) Access personal social media in the presence of the employer.
3) Divulge any personal social media, unless such information is used solely in relation to an investigation of workplace misconduct.
Furthermore, if an employee refuses to comply with the employer’s demand for username or password, the employer shall not discharge, discipline, threaten to discharge or discipline, or retaliate against an employee or applicant for such refusal.
The only instance that an employer may legally require an employee to disclose a username or password, is for the purpose of accessing an employer-issued electronic device. For example, the employer may ask the password to the company-issued laptop you are using. (On a similar vein, employees need to be reminded that employers may legally monitor its employees’ computer and internet activities in the workplace, particularly where the employer provided the computer system and internet access.)
The role of the internet and social media and how these impact the workplace is evolving. At present, there are very few laws that clearly spell out an employee’s right of privacy where social media is concerned. However, proponents of this new legislation say that it is a common-sense measure that will bring clarity to a murky area of employment law.
* * *
C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.