Asking Applicants for Facebook Passwords -- AB 1844

There is a push in the California legislature to enact legislation making it unlawful for an employer to ask an applicant for his/her social media passwords.  Frankly, I don't object to that legislation.  I don't think that a person should be required to disclose a password.  In fact, doing so may violate the terms of use of the particular social media. 

However, I do not believe that it is good law to prevent an employer from viewing social media sites, or asking the employee to show his/her web pages.  Don't we all want to hire the best candidate?  Wouldn't an applicant's writings show a more accurate picture of the applicant?  Of course.  So why would we prevent an employer from viewing social media sites? 

What is also interesting is the text of the legislation, which currently reads: 

BILL NUMBER: AB 1844 AMENDED
 BILL TEXT

 AMENDED IN ASSEMBLY  APRIL 26, 2012
 AMENDED IN ASSEMBLY  APRIL 17, 2012
 AMENDED IN ASSEMBLY  MARCH 29, 2012

INTRODUCED BY   Assembly Member Campos
   (Coauthors: Assembly Members Roger Hernández, Hueso, Portantino,
and Wieckowski)

                        FEBRUARY 22, 2012

   An act to add Chapter 2.5 (commencing with Section 980) to Part 3
of Division 2 of the Labor Code, relating to employment.


 LEGISLATIVE COUNSEL'S DIGEST


   AB 1844, as amended, Campos. Employer use of social media.
   Existing law generally regulates the conduct of employers in the
state.
   This bill would prohibit an employer from requiring an employee or
prospective employee to disclose a user name or account password to
access a personal social media account that is exclusively used by
the employee or prospective employee. 
   Existing law imposes various duties on employers. Under existing
common law, an employer has a duty to exercise reasonable care in
employing a person and is required to use reasonable care to discover
whether a potential employee is unfit or incompetent. 

   This bill would state that an employer does not have a duty to
search or monitor social media before hiring an employee. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 2.5 (commencing with Section 980) is added to
Part 3 of Division 2 of the Labor Code, to read:
      CHAPTER 2.5.  EMPLOYER USE OF SOCIAL MEDIA


   980.  As used in this chapter, "social media" includes any
electronic medium where users may create, share, and view
user-generated content, including uploading or downloading videos or
still photographs, blogs, video blogs, podcasts, instant messages, or
online social networking content.
   981.  An employer shall not require an employee or prospective
employee to disclose a user name or account password to access a
personal social media account that is exclusively used by the
employee or prospective employee. 
   982.  An employer does not have a duty to search or monitor social
media before hiring an employee.  

Notice the stricken language.  It eliminates the language pertaining to 

an employer's duty to conduct a reasonable background check.  The 

statute itself eliminates the language that an employer does not have a

duty to conduct a social media search.  Does this mean that the Legislature

contends that it is an employer's responsibility to conduct such a 

search?  And if so, why is the Legislature taking a tool away from an 

employer who attempts to do so. 

Expect this bill to sail through the Legislature.  I also expect Gov. 

Brown to sign it.  Let's just hope this is the end and that employers 

can conduct meaningful background checks without more governmental 

limitations!