This will be the first of a new series of blogs from Michael B. Kushner, a founding partner of MBK Chapman, that will address discrete issues in California business and real estate law. These blogs will be significantly shorter than the firm’s typical blogs, and we will call these shorter blogs “MBKC Shorts.”
For the very first MBKC Short, I’ve decided to provide some information on an issue involving a client’s (the employer) right to demand that an employee turn over his user name/password to certain personal social media accounts (this law does not apply to company owned electronic devices).
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).
It’s that last phrase that was relevant to my client. 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 access that employee’s private social media accounts.