By Daniel J. Park, Esq.

This is the first article of a two-part series.

In case you missed it, Facebook and Instagram crashed for six (6) hours recently, causing chaos for many businesses and active social media users. The crash served as a stark reminder of how increasingly dependent people and businesses are on these networks for their livelihood.

Facebook, Instagram, LinkedIn and Twitter allow businesses to communicate with new clients, directly market products and services to targeted audiences, and raise brand awareness. As social media sites continue to play a substantial role in business, it is a good idea for any company to be aware of risks related to the use of social media to operate a business.

Social Media Use In The Employee Hiring Process.

A 2018 CareerBuilder survey found that seven in ten employers use social media sites to research job candidates during the hiring process. Social media networking sites are helpful tools in identifying and evaluating potential candidates for available positions. Social media posts by applicants can give a hiring manager valuable information about a job applicant that would not show up on a resume. Social media posts can reveal important characteristics that are highly relevant, such as discriminatory or retaliatory attitudes, sexually explicit activity, drug or alcohol use and abuse, or other personal statements, activities or associations that would be embarrassing to a business.

However, businesses may expose themselves to liability conducting a background check. California’s Fair Employment and Housing Act (“FEHA”) prohibits unlawful discrimination, harassment, and retaliation in the workplace based on protected characteristics specified in the statute (Cal. Gov’t Code §§ 12900 to 12996). FEHA currently prohibits discrimination and harassment based on characteristics including, but not limited to, race, religious creed, color, national origin, physical disability, mental disability, medical condition, marital status, gender, gender identity, age (40 or older), and sexual orientation. (Cal. Gov’t Code §§ 12926 and 12940(a).)

Due to FEHA, a business must maintain a fine balance between obtaining useful information about a job applicant and the risk of a potential discrimination claim. Employers who conduct social media searches of their job applicants need to be careful what they review and how they use the information. Reviewing an applicant’s personal social media account and posts will likely divulge protected characteristics about the job applicant, which could lead to potential discrimination claims from applicants who are not hired.

In addition to considerations under FEHA, the California Fair Chance Act prohibits private employers from directly or indirectly gathering criminal history from or about any applicant before making a conditional offer of employment (Cal. Gov’t Code § 12952), including searching the internet for information about an applicant’s criminal history. There are also a number of local ordinances similar to the California Fair Chance Act, such as the City of Los Angeles’ Fair Chance Initiative for Hiring Ordinance and San Francisco’s Fair Chance Ordinance.

Issues With Monitoring Current Employee Social Media Content.

Businesses have a legitimate concern that employees are not destroying hard-worked investments by posting denigrating or disparaging comments online. As such, in order to protect legitimate business interests, some businesses take measures to monitor the social media posts of its employees.

1. Access to Employee Social Media Accounts.

The dynamics discussed above have led to conflicts over whether an employee should be required to allow an employer access to private social media posts.

California’s Labor Code § 980 prohibits employers from seeking from employees any usernames or passwords for their personal social media accounts. Likewise, employers are prohibited from requiring or requesting employees and applicants to access personal social media in the employer’s presence. The statute also prohibits employers from requesting or requiring an employee to divulge any personal social media content, except for employee investigation purposes. (Cal. Lab. Code § 980(b).)

However, it should be noted the statute makes clear that employers are allowed to request usernames, passwords, and other means to see the content on an employer-issued device.

The statute also contains an exception allowing employers to ask an employee to divulge personal social media content that the employer “reasonably believe[s] to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations” for use only for that investigation or a related proceeding (Cal. Lab. Code § 980(c)). This exception is limited as it does not apply to job applicant investigations nor requests for username or password information for the purpose of accessing an employee’s personal social media. Moreover, employers are prohibited from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for refusing to comply with their request to access a personal social media account (Cal. Lab. Code § 980(e).)

The bottom line? Businesses should understand that the ability to seek their employees’ social media account information is severely limited and that liability arises if there is any form of retaliation for a refusal to provide access to social media content.

2. Privacy Concerns During Employee Personal Time.

Article I, Section I of the California Constitution guarantees citizens a right of privacy. Employees are provided additional statutory protections that protect their privacy as it pertains to communications contained in social media posts:

  • A business cannot prohibit employees from discussing or disclosing their wages, or for refusing to agree not to disclose their wages. (Cal. Lab. Code § 232(a) and (b).)
  • A business cannot require that an employee refrain from disclosing information about the business’ working conditions, or require an employee to sign an agreement that restricts the employee from discussing their working conditions.(Cal. Lab. Code § 232.5.)
  • A business may not refuse to hire, or demote, suspend, or discharge an employee for engaging in lawful conduct occurring during non-working hours away from the business premises. (Cal. Lab. Code § 96(k).) This includes not considering an employee for a promotion due to their political viewpoints made on social media during non-work hours away from the workplace.
  • A business cannot adopt any rule preventing an employee from engaging in political activity of the employee’s choice. (Cal. Lab. Code § 1101 and 1102.)
  • Businesses seeking to discipline employees for social media posts should consider the application of Section 7 of the National Labor Relations Act (the “NLRA”), which protects employees who engage in concerted activity for the purpose of collective bargaining or other mutual aid and protection. Employers that discipline or discharge employees for the content of social media posts may face allegations that the employees’ activity was protected by the NLRA, similar to the protections afforded to employees for discussions about working conditions.

3. Harassment, Retaliation and Discrimination.

Social media communication provides more ways for employees to potentially harass, discriminate, and retaliate against each other. Employers have the same obligations to respond to complaints and investigate online harassment of co-workers whether the alleged instances occur during or outside of work hours or off business premises. Thus, a business may want to consider having policies that expressly discourage supervisors and non-supervisors from “friending” each other on non-business related social media sites as a preventive measure.

To Be Continued . . . .

For information on how to manage social media in your own work place, be sure to read next month’s Email Blast for more helpful tips and ideas.

Daniel J. Park, Esq.

Daniel J. Park, Esq. is a Senior Associate Attorney at Bradley, Gmelich & Wellerstein LLP. Mr. Park is experienced in all aspects of employment law and workplace matters, including class action wage and hour, employment litigation, bankruptcy litigation, and general contract law matters.

Prior to joining the Firm, Mr. Park served as a Complex Litigation Associate Attorney at a law corporation in Pasadena managing an extensive caseload of consumer-sided class action wage and hour and representative actions from initiation to settlement in state and federal courts across California. He also represented many small business and real estate debtors in Chapter 11 bankruptcy litigation matters.

Prior to practicing law, Mr. Park served as the Chief Financial Officer and was on the Board of Directors for an organization created to assist homeless families in finding employment and permanent housing. He also served on the Board of Directors for a foundation that raised capital funding for minorities and low-income families for accessibility to higher education.