<b><i>Online Exclusive:</i> CA Bill Aims to Protect Public Employees' Social Media Accounts</b>

But employment lawyers say AB 25 is almost certainly meant to clear up any doubt that the new social media provisions apply equally to public employees. Recent appellate court decisions have called into question whether certain sections of the state Labor Code, where the new law is contained, extend beyond the private sector, says Robert Milligan, a partner in Seyfarth Shaw's litigation and labor and employment sections.

'Assemblywoman Campos' office has probably proposed the bill to make clear that it applies to public- and private-sector employees in light of the California court decisions,' Milligan says.

AB 25 declares employees' social media protection 'a matter of statewide interest,' a finding that would extend the law's reach into charter cities and counties.

Reactions Mixed

The restrictions contained in AB 1844 and now AB 25 have generated a range of reactions among employment litigators, from shrugs to warnings about unintended consequences.

'I would be surprised if this is anything more than a blip on the radar screen' of most employment lawyers, says Jeffrey Sloan, a partner with Renne Sloan Holtzman Sakai. Sloan says few employers seem eager to dive into an applicant's Facebook account or Twitter feed. And if an employer does want to know what a prospective worker or employee is saying in cyberspace, '90% of the time ' we can usually access that information' without needing a password.

Sloan did say employers want assurances that they can ask for workers' social media passwords during investigations of employee misconduct or wrongdoing. Both AB 1844 and AB 25 contain such provisions.

What about BYOD?

Other lawyers like Milligan worry that new restrictions are too vague for a workplace where the lines between personal and company-controlled data can blur. Although Campos has repeatedly said her legislation is aimed at employers seeking access to well-known sites like Facebook, both AB 1844 and AB 25 broadly define social media as almost any kind of electronically stored data, from blogs to photos to text messages.

What happens with a company that has a bring-your-own-device policy allowing workers to connect their personal laptops to a corporate network? Milligan asks. Should the employer be allowed to seek passwords for blogs or social accounts created with the company's resources? Do workers keep sole control of their Twitter handles when they leave a company, even if the posts were heavily tied to the employer's brand or activities? Milligan says the pending and proposed laws aren't clear.

'I just don't think the statute is really thought out,' he says. 'It's going to lead to some unintended consequences down the road.'

Milligan says he advises employers to draw up clear employee agreements that ensure social media accounts stay in the company's control.

California was one of five states in 2012 that enacted legislation barring employers from seeking access to workers' personal social media accounts. AB 1844 was passed with overwhelming support in the Legislature even though the author's office could only point to a handful of incidents around the country where employers had sought their employers' personal log-in information.

Cheryl Miller writes for The Recorder, the San Francisco-based ALM affiliate of Internet Law & Strategy.

The author of a new law that will bar companies from seeking their workers' social media passwords has introduced legislation to extend the protections specifically to public employees.

Assembly Bill 25 would prohibit public agencies from seeking access to workers' or job applicants' Twitter accounts, Facebook pages or other privately generated electronic content. The restrictions mirror those included in Assembly Bill 1844, which was signed by Governor Jerry Brown in September and generically targets employers ' with no reference to their public or private status. The legislation became law on Jan. 1.

It's unclear why AB 1844 author Assemblywoman Nora Campos (D-San Jose) is carrying new legislation aimed specifically at public agencies. Several messages left with her Capitol office were not returned.

But employment lawyers say AB 25 is almost certainly meant to clear up any doubt that the new social media provisions apply equally to public employees. Recent appellate court decisions have called into question whether certain sections of the state Labor Code, where the new law is contained, extend beyond the private sector, says Robert Milligan, a partner in Seyfarth Shaw's litigation and labor and employment sections.

'Assemblywoman Campos' office has probably proposed the bill to make clear that it applies to public- and private-sector employees in light of the California court decisions,' Milligan says.

AB 25 declares employees' social media protection 'a matter of statewide interest,' a finding that would extend the law's reach into charter cities and counties.

Reactions Mixed

The restrictions contained in AB 1844 and now AB 25 have generated a range of reactions among employment litigators, from shrugs to warnings about unintended consequences.

'I would be surprised if this is anything more than a blip on the radar screen' of most employment lawyers, says Jeffrey Sloan, a partner with Renne Sloan Holtzman Sakai. Sloan says few employers seem eager to dive into an applicant's Facebook account or Twitter feed. And if an employer does want to know what a prospective worker or employee is saying in cyberspace, '90% of the time ' we can usually access that information' without needing a password.

Sloan did say employers want assurances that they can ask for workers' social media passwords during investigations of employee misconduct or wrongdoing. Both AB 1844 and AB 25 contain such provisions.

What about BYOD?

Other lawyers like Milligan worry that new restrictions are too vague for a workplace where the lines between personal and company-controlled data can blur. Although Campos has repeatedly said her legislation is aimed at employers seeking access to well-known sites like Facebook, both AB 1844 and AB 25 broadly define social media as almost any kind of electronically stored data, from blogs to photos to text messages.

What happens with a company that has a bring-your-own-device policy allowing workers to connect their personal laptops to a corporate network? Milligan asks. Should the employer be allowed to seek passwords for blogs or social accounts created with the company's resources? Do workers keep sole control of their Twitter handles when they leave a company, even if the posts were heavily tied to the employer's brand or activities? Milligan says the pending and proposed laws aren't clear.

'I just don't think the statute is really thought out,' he says. 'It's going to lead to some unintended consequences down the road.'

Milligan says he advises employers to draw up clear employee agreements that ensure social media accounts stay in the company's control.

California was one of five states in 2012 that enacted legislation barring employers from seeking access to workers' personal social media accounts. AB 1844 was passed with overwhelming support in the Legislature even though the author's office could only point to a handful of incidents around the country where employers had sought their employers' personal log-in information.

Cheryl Miller writes for The Recorder, the San Francisco-based ALM affiliate of Internet Law & Strategy.