Social Media Pages and Employers: the New Reality

George came in for an interview at Hard Bodies, a combo auto body repair/dance revue studio. Mary, head of human resources, checked out George’s qualifications for both
aspects of the job. In her own words, “He looked good.”

After he left, she called some of his past employers. Fred, head mechanic at Otto Body, provided a glowing recommendation. “He knows how to pound it out,” referring to
handling particularly difficult dents and other body damage.

The next call went to Save A Horse, Ride A Cowboy, a Chippendales wannabe. Alice, head dancer, reported, “He knows how to pound it out.”

Based on these strong recommendations, Mary decided to take George’s application to the next level.

In her experience, she learned that what people post on social media websites can differ with the persona candidates present during job interviews. The staid conservative actually
is a total party animal and likes to brag about it online. Or the seemingly eager applicant has severe personal doubts about the morality of dancing or doing most anything in public. These were red flags of potential problems she wanted to avoid.

So, she wanted to check George’s Facebook account to see if there were any landmines waiting for the unsuspecting new employer. But she’d heard that there were new laws
prohibiting some employer activity in the social media world.

After checking with her esteemed company attorney, she learned that Gov. Jerry Brown had enacted two laws on this issue.

The first, AB 1844, would prohibit an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the
purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.

This same bill would also prohibit an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or
applicant for not complying with a request or demand by the employer that violates these provisions.

A second law on the books has much the same rules but applies to college applicants and students.

Mary now knew she could go to Facebook or similar websites and view George’s pages, if any, if he let her. However, if he protected his pages from strangers by preventing them
from viewing the pages without his permission, then Mary could not force him to give her the necessary passwords to gain access.

Additionally, Mary now could not demand her current employees give her their passwords, either, unless it had to do with an investigation of employee misconduct.

An interesting exception to this rule is that these prohibitions do not apply to “accessing an employer-issued electronic device.” So, if she gave her dancing body men any cellphones or iPads, she could demand all of the passwords.

In George’s case, she had no problem viewing his Facebook page. Everything looked acceptable, so she made him an offer.

So, before demanding your employees open up their digital kingdom to you, check with your employment law attorney to make sure you don’t inadvertently give them the right to sue you.©

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