OVERVIEW
A lot of my corporate clients ask me whether they can monitor employees’ private emails and social media accounts while the employee is using the employer’s network, computer equipment, etc. This typically starts a long discussion about whether the company provided the requisite disclosures. Recently, however, a client asked about whether his company could require employees to provide password access to their private (as opposed to company-owned) social media accounts.
The answer is maybe.
FOR THE MOST PART, AN EMPLOYEE’S PERSONAL SOCIAL MEDIA ACCOUNTS ARE PRIVATE
Generally speaking, California Labor Code section 980 bars employers from requesting or requiring an employee to turn over his or her user name/password to personal social media accounts, or otherwise forcing the employee to access his or her social media accounts in front of the employer. Likewise, employers in California cannot terminate an employee who refuses to turn over or access his or her personal social media account if the request violates the law (i.e., violates Lab. Code, § 980).
But as with most things, there are exceptions. Labor Code section 980 references such an exception, and that exception happened to be relevant to the client about whom I’m writing. You see, in the case of my client’s employee, the company had strong evidence showing that the employee in question had posted some of the company’s confidential information on one or more of his social media accounts, and the demand for access to that employee’s social media accounts occurred within the context of a company investigation into the employee’s misconduct.
As it so happens, Labor Code section 980 permits employers to demand such information as long as the employer uses that information solely for the purpose of the investigation. So, in that case, my client was legally entitled to demand access to that employee’s private social media accounts.