In the recent weeks there has been considerable controversy over employers seeking to require applicants to provide the passwords to their Facebook accounts or other social media sites as part of the application process and as a condition of hiring. The issue has become whether this practice is an invasion of privacy.
A bill has recently been presented in the California legislature that would specifically prohibit this practice in the employment context. (AB 1844). There is some language that has been proposed that does seek to protect the employer in some circumstances. As the legislation has been presented, it would :
- Prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee; and
- Would provide some protection to an employer on a claim of negligent hiring stating that an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent because the employer failed to search or monitor any “social media” before hiring the employee.
The term “social media” for purposes of this proposed legislation would be defined as: an electronic medium where users may create and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, or instant messages.
Because there has been some concern that an employer could be held liable for “negligent hiring” if the employer does not undertake all reasonable measures to search an applicant’s background prior to employment, including searching social media sites, the legislation proposes some protection for employers. An employer would be protected from such claims if a social media search of an applicant prior to hire did not occur.
We will keep you advised of the status of this important piece of legislation.