To Protect or Not To Protect
Social Media has exploded over the last 5 years and it is certainly here to stay. Social media offers a great venue to voice your opinions, share photos, and connect with friends and co-workers. On the flip-side, protection from sexual harassment, discrimination and other protected activities are increasing. The one area that seemed to get lost in the mix was the issue of discrimination in the use of social media.
Over the past year, I have had many conversations with other human resource experts about the issue of discrimination in hiring practices as it relates to Social Media. All agree that social media is bringing new challenges to the hiring practices and generally to the employment arena. They also agree that regulations have not been well crafted to deal with these issues. It’s a wait-and-see situation.
Social media offers employers a unique opportunity to get to know the candidate – albeit sometimes getting to know the candidates too well. There are certain protections during the hiring process which are afforded to applicants – protection from discrimination based on protected classes – age, disability, etc… Social media blows those protections out of the water. While employees set the traps themselves and then trip the wire themselves, there is still the issue of free speech and discrimination.
California is trying to tackle this issue in AB 1844 and it looks like it is doing a good job so far. The bill has been amended 7 times since its introduction on February 22nd. The bill is seeking to prohibit employers from asking for social media activity, passwords, usernames and the like and then using the social media activity to discriminate, harass, discipline or discharge employees. While this bill is seeking to provide some level of protection, it still gives the employer the right to access social media for a legitimate investigation, use of employer owned electronic devices or for unlawful activities.
Employers should review their hiring practices and ensure that they are not requiring social media information from applicants. You may also wish to review your application to ensure that you are not asking prohibited questions that relate to race, age, disability and the like. In addition, employers should review these procedures with supervisory level staff to ensure continuity throughout the organization.
AB 1844 Proposed Language
980. (a) As used in this chapter, "social media" means 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. (b) An employer shall not require or request an employee or applicant for employment to do any of the following: (1) Disclose a username or password for the purpose of accessing personal social media. (2) Access personal social media in the presence of the employer. (3) Divulge any personal social media, except as provided in subdivision (c). (c) Nothing in this section shall affect an employer's existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding. (d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device. (e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law. SEC. 2. Notwithstanding any other provision of law, the Labor Commissioner, who is Chief of the Division of Labor Standards Enforcement, is not required to investigate or determine any violation of this act.