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SCVNews.com | Opinion/Commentary: Social Media and Employers: The New Reality | 11-30-2012
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Commentary by Carl Kanowsky Esq.
| Friday, Nov 30, 2012

Carl Kanowsky, Esq.

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 they 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 land mines waiting for the unsuspecting new employer.  But she’d heard 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, Assembly Bill 1844,  prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a user name 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 bill also prohibits 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.

The other law has much the same rules but applies to college applicants and students.

Mary now knew she could go to Facebook or similar web sites 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 to 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 cell phones 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.

 

Carl Kanowsky is an attorney in Santa Clarita. He can be reached at cjk@kanowskylaw.com. Visit him online at www.kanowskylaw.com.

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1 Comment

  1. John says:

    My daughter-in-law is going through a background check right now with the LA County Sheriff’s Dept. They asked for her usernames and passwords for all of her social networks. Are they exempt from Assembly Bill 1844?

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