Governor Brown has signed a new law prohibiting employers from requiring or even requesting user names and passwords for social networking sites from employees or job applicants. The new law goes into effect on January 1, 2013.

            Under the new law, employers are similarly prohibited from requiring or requesting an employee to access personal social media in the presence of the employer, or that an employee divulge any personal social media. This would presumably prohibit an employer from requesting that an employee provide the personal social media content of a co-worker who is a Facebook friend. "Social media" is broadly defined by the law as including videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.

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

            Notable exceptions to the rule are that an employer can still request that an employee divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee's violation of applicable laws, provided that the social media is used solely for purposes of that investigation or a related proceeding. Also, an employer can still ask an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

            Employees will be able to make a complaint to the state Division of Labor Standards Enforcement if they feel their employer has violated the law. However, the law expressly states that California's Labor Commissioner is not required to investigate complaints that the law has been violated. Moreover the law does not specify what penalties an employer would face in the event a violation is found, or what happens if the Labor Commissioner declines to investigate complaints of violations.

Since this new law goes into effect on January 1, 2013, employers should consider:

• Training hiring managers and all persons responsible for interviewing job applicants about the requirements of this new law.
• Updating personnel policies/procedures to address the new law --- and, in particular, policies relating to social media and the use of employer-provided tablets, laptops, smartphones, PDA's and desktop computers.

           For more information, call us today at (818) 508-3700, or visit us on the web at www.brgslaw.com

Sincerely,

Richard S. Rosenberg

Partner

BRG&S, LLP