California Recognizes Employees’ Right to Privacy in Social Media Content

Posted on Saturday, December 01, 2012 at 04:12PM
Posted by Peter HoffmannRains Lucia Stern


As the social media capital of the world, it is only fitting that California has finally adopted laws to provide employees with what would seem to be obvious privacy protections. On September 27, 2012, Governor Jerry Brown signed AB 1844, which prohibits employers from requiring or requesting an employee or applicant for employment to:

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.

While AB 1844 created an exception for circumstances involving relevant inquiries relating to investigations of allegations of employee misconduct, an employer may 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.

While the provisions of AB 1844 reflect significant progress in protecting the privacy rights of employees, officers are strongly encouraged to exercise discretion in posting comments or sensitive content on any social media website. Although many (incorrectly) believe that simply making their accounts ìprivateî will insulate their online conduct from employer scrutiny, experience has shown that comments once thought to be private often find their way into the public forum. The only assurance to prevent having to justify a questionable comment or post is to exercise good judgment beforehand.

About the Author

Peter Hoffmann is an attorney at Rains Lucia Stern. He regularly assists labor associations with contract negotiations, grievances and related legal matters. Peter has successfully litigated a number of large-scale actions under the Fair Labor Standards Act (FLSA). He has also represents individual peace officers in disciplinary appeals and critical incidents.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.