By Robert Milligan and Jessica Mendelson
Recently, we blogged about the passage of California Assembly Bill 1844 (“AB 1844”), which regulates employers’ ability to demand access to employees’ or prospective hires’ personal social media accounts. Assembly Bill 1844 was codified as section 980 of the California Labor Code. Recently, California State Assemblywoman Nora Campos has proposed an additional bill, AB 25, which amends California Labor Code section 980 to specify that it applies to private and public employers.
Although the language of AB 1844 does not specify that it only applies to private employees, Campos’ office likely proposed the bill to make clear that it applies to both public and private sector employees in light of recent California court decisions. Although public employees are not specifically excluded by the statute, the term employer is not defined in California Labor Code section 980. Furthermore, recent California appellate decisions call into question whether certain Labor Code sections apply to public employers. For example, in California Correctional Peace Officers’ Association v. State of California, 189 Cal.App.4th 849 (2010), the correctional officers union brought a class action against the state claiming penalties for alleged missed meal periods under Labor Code section 226.7. The meal period requirement in the statute did not explicitly exclude public sector employees, and the plaintiffs argued this indicated an intent to cover both public and private employees. However, the Court of Appeal held otherwise, finding that the union’s arguments about alleged legislative intent were trumped by a more general presumption that the Labor Code does not apply to government employees. The Court found, “A traditional rule of statutory construction is that, absent express words to the contrary, governmental agencies are not included within the general words of a statute.” The court drew upon the case of Johnson v. Arvin–Edison Water Storage Dist., 174 Cal.App.4th 729 (2009) in its analysis, stating that “unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.”
As we have previously mentioned in our prior blog post about AB 1844, while California Labor Code section 980 is well-intentioned, the statutory language has some serious shortcomings. The definition of social media is overly broad, including “electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” This could be construed to cover effectively all digital content and activity.
Furthermore, the law provides no definition of the term “personal.” While the law only applies to personal accounts, the lack of definition of the phrase “personal” is problematic, particularly since it is not always clear who owns company social media accounts. We have previously blogged on cases concerning the ownership of “social media assets” on Twitter, Facebook, and MySpace, each of which illustrate the importance of clear policies regarding the ownership of company social media accounts. Here, without clearly defining the term, the law goes too far and will likely lead to unintended consequences and perhaps misuse. Both public and private employers will need to make sure that they employ social media ownership agreements with their employees to ensure that company social media accounts stay with the company and that the employer has the username and password for the account when the employee departs.