Thank goodness the California Legislature has acted swiftly to avoid an economic catastrophe … Oh, that’s right, it didn’t.  But at least we have the Legislature worrying about employees’ rights to lead a secret social media life without employer scrutiny. 

The governor signed AB 1844.  It prohibits an employer from asking or requiring an applicant or employee to:

  • Divulge a social media username or password;
  • Access social media in the presence of the employer; or
  • Divulge any personal social media. 

This law does not affect an employer’s “existing right or obligation” to request disclosure of social media information if it is reasonably believed to be relevant to an investigation of misconduct or violation of law.  Notice that the disclosure in this case need not relate to particular employee whose media may be examined.  However, what does the law mean when it says “existing right or obligation”?  I am not aware of another law affording an employer the express right to examine social media.  Nor am I aware of any law that specifically obligates an employer to examine social media. 

Presumably, this exception was intended for those situations when an employee uses social media to harass another worker.  However, the law does not clearly articulate this point.  Where there is ambiguity, there is litigation. 

Moreover, what must an employer show to prove that it “reasonably believed” the social media to be relevant to an investigation of wrongdoing? 

And what happens when the social media does not contain information related to the allegation of wrongdoing, but might have information regarding wrongdoing in another matter that was unknown to the employer?  Can that information be used to conduct a new but “related proceeding”?  Or must the related proceeding be based on information discovered someplace other than the social media? 

Social media continues to be a confusing area of the law.  Employers must carefully develop social media policies and carefully enforce those policies. 

Perhaps another consequence of these laws is to simply encourage employers to terminate the employment of employees without making a request in violation of AB 1844.  If requesting access to social media could lead to litigation, why not just terminate the employment relationship?  Provided that the action does not breach an employment contract or violate public policy, the termination probably won’t result in litigation.  In fact, AB 1844 allows employers to terminate the employment relationship if it is otherwise not prohibited by law.