Will social media be a protected activity?

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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.

Next Steps

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
   (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
   (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
   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.