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What’s the problem with checking social media accounts of applicants and employees?

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in Employment Law,Hiring,Human Resources

Q. I would like to ensure that all of the individuals working for us do not engage in morally questionable behavior. Since many people show their true selves on social media, not at work, can I check the social media profiles of applicants and employees?

A. California Labor Code Section 980 prohibits employers from requiring or requesting that an employee or applicant:

  • Disclose his or her username or password to access his or her personal social media accounts
  • Access his or her personal social media account in the presence of the employer
  • Divulge any personal social media information (other than information reasonably believed to be relevant to an investigation of employee misconduct or the law, if the information is only used for that purpose).

Further, the law prohibits employers from retaliating against employees and applicants who refuse to comply with inappropriate demands.

The law does not prohibit an employer from requiring or requesting usernames or passwords to access employer devices. Nor does it prohibit an employer from searching for an applicant or employee’s public social media account, or from “friending” applicants or employees to be able to see their social media accounts.

Another law to consider is California Labor Code Section 96(k), which enables “claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” Under the law, employees have the rights to perform lawful off-duty activities and to privacy regarding these activities.

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