Employee Privacy on Social Media

California law prohibits employer access to the personal social media accounts of its employees. “Social media” is defined as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”

Intended to protect privacy, the law prohibits a California employer from requiring employees or job applicants to:

• Disclose a username or password for the purpose of accessing personal social media;
• Access personal social media in the presence of the employer; or
• With the exceptions below, to divulge any personal social media.

Employers are permitted to request personal social media information as part of an investigation into alleged employee misconduct or illegal activity if there is reason to believe relevant information exists in that social media. In such a case, the employer may only use the social media information for purposes of the investigation.

Employers may require employees to disclose usernames, passwords or other access information for employer-issued electronic devices, such as computers, phones, or tablets.

Companies that issue such devices to employees should consider publishing written policies on expected etiquette and on management’s ability to access and monitor such devices. Employees should understand that their privacy rights do not extend to the content of emails or texts exchanged via company equipment.

The policy should include:

• Employee Privacy – There is no reasonable expectation of privacy for the information stored on computers or other devices owned by the company. Further, management has the right to review any such information at any time;
• Ownership of Information – Any information stored or transmitted on a company-owned electronic device is property of the company;
• Acceptable Usage – Employees may only use e-mail or texting on company devices for company business. Communications should be professional and respectful and not degrading, insulting or bullying; and
• Company Social Media – The Company owns, operates and manages its social media accounts. Users are to set up the accounts with company email, etc., and are required to provide the password/log-in information to management.

California businesses should closely review their workplace personnel management practices and social media policies to ensure they are consistent with the above rules and provide clarity on employee privacy rights for company-issued devices.

• If It Isn’t Written, Workplace Policy is Anyone’s Guess (March, 2018)
• Defining Employee Privacy (April, 2011)
• Expecting Privacy at Work? Fugeddaboutit! (January, 2011)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

August 30, 2018