California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

Maryland recently became the first in the nation to ban employers from asking job applicants and employees for their Facebook and other social media passwords.  The law was signed into legislation by Maryland’s Governor approximately one year after the ACLU took on the case of Robert Collins who claimed he was forced to turn over his Facebook password to the Maryland Department of Corrections during a job interview.  Collins claims he was required to give his password to the interviewer who then proceeded to log onto his account and look through his personal messages, wall postings and photographs while Collins sat there. 

The new Maryland law, which goes into effect in October, specifically prohibits employers from asking or requiring a job applicant or employee to disclose any user name, password or other means for accessing a personal account on a social media site through a computer, telephone, PDA or other similar device.  The law also makes it illegal for employers to refuse to hire an applicant or take any adverse employment action against an employee for refusing to provide their personal login information.

Supporters of internet privacy are applauding Maryland’s adoption of the nation’s first so-called “social media password law.”  Supporters say such legislation is important because it not only protects individual privacy but it also prevents employers from accessing information that they cannot ask about during the hiring process such as ethnicity, sexual orientation and religion.

Since Maryland’s passage of a social media password law, several states including California and the federal government are proposing similar legislation.  For example, there are currently two bills pending before Congress.  The Password Protection Act of 2012 was recently introduced in the Senate and House.  The PPA proposes to prohibit employers from forcing prospective or current employees to provide access to their own private account on social media sites as a condition of employment.  The PPA would also prohibit employers from discriminating or retaliating against a prospective or current employee because that employee refuses to provide his or her password.  In addition, the Social Networking Online Protection Act, which provides similar protections as the PPA, has been introduced in the House.  However, SNOPA goes further in that it would also protect students from being forced to disclose their login information to schools from kindergarten through the university level. 

The California Legislature is expected to vote this year on AB 1844.  This bill would ban employers from requiring a job applicant or employee to provide usernames and passwords to their personal social media accounts.  The proposed law defines social media as “an electronic medium where users may create and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, or instant messages.”  In addition, because the proposed law bans employers from asking for login information, the law also prohibits employers from checking social media sites before hiring an employee.  Therefore, an employer could not later be held liable for negligent hiring if it did not search a prospective employee’s social media site.  The proposed law states that “an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer's failure to search or monitor social media” before hiring.

SB 1349, known as the Social Media Privacy Act, is also pending in the California Legislature.  This bill is similar to AB 1844 except that it goes further by banning public and private postsecondary educational institutions from requiring or requesting a current or prospective student from disclosing their usernames and passwords for a personal social media account or to provide the institution with access to that account. 

It remains to be seen whether the California legislature or Congress will adopt social media password laws.  Governor Brown has not taken a position on AB 1844 or SB 1349.  However, given the current trend favoring social media password protection laws, California employers may want to consider refraining from asking for social media login information from current and prospective employees unless there is a strong legitimate business reason for doing so.  Even then, employers should carefully weigh the potential risks associated with asking for such information.    

Please contact our Los Angeles, San Francisco, Fresno, or San Diego office for any assistance in reviewing social media policies.

There are numerous signals that the U.S. economy is recovering – unemployment numbers are improving in California and elsewhere, there are mixed indications of a brighter housing market, and the stock market over the last months has improved substantially.  The overall mood may have also turned a corner, with less news of economically motivated protests, or of waves of foreclosures, and more talk of IPO’s and new business ventures.

For some California public sector employers, a brighter outlook is corresponding with more hiring.  Although this is good news, the hiring process does carry legal risks, just as did downsizing and other like matters in bad economic times.

Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective.  This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.  

1.         Utilize Accurate Job Descriptions:  At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions.  These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship.  An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related.  Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical.  Under both federal and state law, a Court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what are essential functions. 

Detail in the job description can be very important also, because vague or overly general job descriptions can fail to give proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions.  Misunderstanding about the nature of the job can produce charges of discrimination or of failure to accommodate.  At a minimum, a job description should contain: (a) job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation.  Where possible, job requirements should be validated by experts using professionally accepted validation methods.  

2.         Establish a Uniform Screening Process for Applications:  The next phase to consider is the initial “screen” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants.  As a general matter, an employer’s initial “screen” must be conducted in a neutral manner that does not result in an unjustifiable, disproportionate impact with regard to a protected characteristic, e.g. race, gender, religion, age over 40, etc.  Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job.  The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed, and to confirm that decisions were not influenced by improper considerations. 

3.         Focus Interviews on Job-Related Questions, and Avoid Improper Questions:  Like other aspects of the hiring process, interviews must be non-discriminatory.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  The California Department of Fair Employment and Housing has promulgated a list of questions that cannot be asked in an interview.  Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace.  (The list of questions is available at: http://www.dfeh.ca.gov/res/docs/publications/dfeh-161.pdf.)  The FEHA publication lists how questions can be phrased in a way that requests information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, if relevant to the job at issue.) 

It is vital that agencies ensure that those employees conducting interviews have received training in what are protected classifications, and what questions are prohibited – and of course those conducting interviews should have become thoroughly familiar with the job description and nature of the job in question.  

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