The Attorney as Employer: The Law Regarding Employee Privacy in Social Media
Written by: Neil Pedersen
The attorney employer has a legitimate interest in hiring the best employees possible, and in monitoring the employees’ compliance with both internal rules and policies regarding the use of social media, and the overall firm duties to its clients and to the Rules of Professional Conduct. To that end, review and monitoring of employee and prospective employee social media posts can be very helpful. .
Social media has become part of the fabric of our society, including those who work for and apply to work at law firms. Seven years ago, less than 10% of Americans were part of a social media site. Today, 69% of all adults with online access are part of a social media site, and over 90% of those between the ages of 18 and 29 participate in social media. As of February of 2012, 89% of social network site users had a Facebook account, which translates into 66% of all online adults. .
The rise in the use of social media has also led to a change in how our employees relate to one another. One of these changes has been referred to as “cyberdisinhibition” – an increased willingness to behave online in ways that would not be attempted in person, making users bolder and driving them to inappropriate online behavior. .
A recent study and poll has revealed that over 42% of the respondents said they feel less inhibited interacting online than face-to-face and over 30% said that online interaction let them do something they have been wanting to do. .
This decrease in social inhibitions can lead to social media posts that reveal more about a person than they would like the general public to know, even though they are willing to share that part of their personality with family and friends. .
As an employer, the attorney sees social media as a tool and as a potential liability. As a tool, social media posts by our employees and applicants can give us as an employer a look “behind the curtain” at the real person with whom we are dealing. Those posts can reveal important characteristics that are highly relevant to the employer, such as discriminatory or retaliatory attitudes, drug or alcohol use and abuse, or other personal statements, activities or associations that would be embarrassing to the company. As a liability, employers have a legitimate concern that employees are not destroying advertising and PR investments by posting denigrating or disparaging comments online. Perhaps more importantly, law office employees, unlike so many other employees, are vested with responsibilities of client confidentiality as well as compliance with very specific guidelines regarding solicitation of client and other communications that could well be characterized as attorney advertising. .
As such, employers have taken measures to monitor the social media posts of its employees to carry out their legitimate employer interests. .
These dynamics have led to clashes over whether an employee should be required to allow an employer unfettered access to “private” social media posts. In the last several years, many employers started asking for the employee or applicant to provide the employer with passwords or access to their social media accounts, with the penalty for refusal being discipline or rejection as an applicant. Employers argue that the information cannot be considered private if published to 500+ “friends” on Facebook, and on the other hand, employees wish to keep their personal postings personal among those they choose to share them with. .
California has now weighed in on the issue and is generally in favor of the employees. On September 27, 2012, Governor Jerry Brown signed into law A.B. 1844, which went into effect on January 1, 2013. The law has been codified as Labor Code §980. The new law prohibits employers from seeking from employees or applicants any usernames or passwords for their personal social media accounts. Likewise, the employer cannot require the employees or applicants to provide access to their personal social media in the employer’s presence. .
The employer cannot ask to be provided with any personal social media content as well. .
The law also provides that it is unlawful for any employer to retaliate against an employee or applicant for refusing to provide requested information protected by the statute. .
While the new statute provides some legal boundaries that did not exist before, the statute will create almost as many new issues as it attempted to address. .
For instance, the legislature has swept into the statutory definition of “social media” far more than what the rest of world tends to think of as social media. Labor Code §980(a) provides that “‘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.” In an attempt to define social media, the legislature has included almost all forms of digital communication. .
Additionally, while the statute defines the term “social media” it uses the term “personal social media” in the proscriptive language of the statute. .
The term “personal social media” is not defined, leaving a serious ambiguity through which employers could still attempt access if they can argue that the employee’s social media account was used, at least in part, for business purposes as innocuous as keeping social contacts alive and non-explicit marketing or branding. .
Interestingly, the statute says nothing about an employer accessing social media that is left open to the public by the employee or applicant as a result of intentional decision or unwitting failure to know the privacy settings of their social media site. The courts will have to continue to work that issue over. For the attorney employer, this is an unknown risk for now. .
An express statutory exception will also provide fertile ground for controversy. That exception expressly allows employer access to the employee’s personal social media content where the employee is being investigated by the employer for allegations of misconduct or violation of applicable laws and regulations. .
However the law provides no guidance on the exercise of this right, apparently leaving it to the employer. Thus, like salmon fishing, employee personal information fishing expeditions are allowed only when the “fish” are in season. For attorney employers, this means you will likely need some objective basis for the investigation, such as a third party report of something. However, until litigated and clarified, it will remain an open question how much will be needed beyond a mere hunch. .
The statute also makes clear that which had already been decided in case law – employers are allowed to request usernames, passwords and other means to see the content on an employer-issued device. .
This is, perhaps the most effective and least risky position that can be taken by the attorney employer as the law is clear on the subject. .
Perhaps most interesting is that the statute appears to be a prohibition without a penalty. The new statute does not contain any provision for a civil penalty for violation of the statute, and Section 2 of the statute expressly provides that the Labor Commissioner is not required to investigate or determine any violation of the law. Perhaps eventually Labor Code §980 could be the basis for a public policy for which a wrongful termination claim could be stated. For now, it will operate as a legal standard without teeth to enforce it. .
Regardless of the enforcement mechanism, it would be prudent for attorney employers to understand that the ability to seek this information has been severely limited and that liability might ensue if there is any form of retaliation for a refusal to provide access to social media content. .
About the Author
Neil Pedersen is principal of Pedersen McQueen, APLC. His practice includes representing employees in discrimination, harassment, retaliation and leave claims, as well as other employment law issues. Neil also teaches Employment Law and Law Practice Management and Technology as an adjunct faculty member at Western State College of Law. Neil can be contacted by phone at (949) 260-1181 or by e-mail at email@example.com.
1 Joanne Brenner, Pew Internet: Social Networking, a project of the PewResearchCenter, November 13, 2012 http://pewinternet.org/Commentary/2012/March/Pew-Internet-Social-Networking-full-detail.aspx)
2 MarketingCharts, SocNet Users Enhance Relationships, Lose Inhibitions, November 24, 2009 (http://www.marketingcharts.com/interactive/socnets-users-enhance-relationships-lose-inhibitions-11175/)
4 See, e.g., The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2012-186
5 For instance, the Federal Trade Commission has given its stamp of approval to Social Intelligence Corp., a background check company that screens job applicants based on their internet photos and postings. Forbes Online, Social Media Background Check Company Ensures That Job-Threatening Facebook Photos Are Part Of Your Application, June 20, 2011 (http://www.forbes.com/sites/kashmirhill/2011/06/20/now-your-embarrassingjob-threatening-facebook-photos-will-haunt-you-for-seven-years/)
6 Labor Code §980(b)(1), (2) [“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.”]
7 Labor Code §980(b)(3) [“An employer shall not require or request an employee or applicant for employment to do any of the following:… Divulge any personal social media, except as provided in subdivision (c)”]
8 Labor Code §980(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.”]
9 See, e.g., Labor Code §980(b)(1) through (3) and (c)
10 Labor Code §980(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.”]
11 Labor Code §980(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.”]
12 Of course, it is prudent for any employer who wants to have unfettered access to the employee’s computer data to have given the employee clear warnings – in handbooks, internal policy memoranda or even a written employment agreement – that anything done on firm equipment belongs to the firm and will be reviewed by firm management.
From The Bottom Line, August 2013