Employers and social media privacy is a relatively new concept and continues to evolve as social media becomes more prevalent and is even used by companies for advertising. Companies can create social media policies to regulate how employees and company representatives utilize social media websites. The majority of individual employees have at least one social media account for their personal use.

A business itself may also maintain several social media accounts that are used for the promotion of the company. The social media policy of a company typically has to main goals, including:

  • Allowing of the use of social media to promote the business’ services or products; and
  • Restricting what information an employee can post on their personal social media accounts.

A social media policy may also regulate an employee’s personal social media usage during work hours. The laws governing the usage of social media are still very new and are subject to changes and updates as the industry evolves. A social media policy often takes the form of a nondisclosure agreement which states what the parties are permitted to do and are prohibited from doing with regards to social media.

In 2013, the State of California enacted legislation AB 1844 which protects California residents from unwarranted invasions of their social media accounts. More specifically, it prohibits an employer from requesting social media usernames and passwords of job applicants and employees in order to gain access to their personal social media websites.

According to this social media privacy law, an employer is prohibited from discharging, discipling, or otherwise retaliating against an applicant or an employee for refusing to provide the previously discussed information. 

The law includes an exception which permits an employer to request that the employee provide personal social media information related to a workplace investigation of employee misconduct or a violation of the law. In addition, this law does not apply to information or passwords that are used on employer-issued electronic devices.

In 2020, the California Consumer Privacy Act (CCPA) was enacted which is designed to limit what social media companies such as Facebook and Twitter can do with the information they collect. It is important to be aware that these companies collect information including:

  • Birthdays;
  • Phone numbers;
  • Email addresses;
  • Employers;
  • School locations;
  • The user’s location;
  • The device the user is utilizing; and
  • Other biometric characteristics.

How can California Social Media Employee Privacy Rights be Violated? 

Social media policies may lead to very specific types of legal disputes. For example, an employee may be held liable for violating an agreement not to make certain disclosures on their personal social media accounts. 

In the alternative, an employer may be held liable for restricting an employee’s rights regarding their social media accounts. Examples of social media policy disputes may include:

  • The unauthorized disclosure of private company information, which may include a trade secret or other sensitive information;
  • False advertising, especially if an employee posts information to their social media account without being fully informed or without performing proper research;
  • Using deceptive trade practices or posts which slander competitor companies;
  • Unauthorized usage of copyrighted material or other intellectual property that belongs to the company;
  • A violations of Federal Trade Commission regulations; and 
  • A dispute involving employee privacy rights, which may occur when an employer demands that an employee provide them the passwords to personal social media accounts.

Many social media policy legal disputes involve a breach of a confidentiality agreement or a breach of contract. It is important to note that disputes and violations may change as the types of social media continue to evolve.

If a policy dispute arises, it may result in a damages award to compensate the non-violating party for their losses. For example, if an employee posts a trade secret on their social media account, they may be required to compensate the employer for any losses which were caused by the disclosure. Another possible remedy is a revision of the policy terms, especially if the social media policy restricts the employee’s rights too much or violates social media employee privacy rights.

What if I Feel My Social Media Privacy Rights Were Violated as an Employee? What Remedies are Available to Me?

The right to privacy is defined as an individual’s right to be free from public intrusion and the right to be left alone. Although this right is not specifically mentioned in the text, the right to privacy is a concept which is deeply ingrained in several of the Amendments to the United States Constitution. This right was developed through a number of Supreme Court cases.

Currently, most privacy protections come from various federal and state privacy statutes. In addition, if a statute does not provide for a private right of action, an individual may be permitted to sue for an invasion of privacy based upon one of four causes of action in tort law.

Additionally, as technology advances, the need for privacy protections increases. There are also some individualized privacy rights which stem from international policies or laws.

Currently, the United States does not have a federal privacy law. Because of this, many states have been required to fill the gap by enacting statutes which offer privacy protections for individuals and implementing overlapping laws as well which involve:

  • Data protections;
  • Cybersecurity regulations; and
  • Other related issues.

If an individual believes that their privacy rights have been violated, there are several privacy laws which may apply to their case. It is best to consult with an attorney who will have knowledge of these laws and which may apply. 

It is important to note that the legal penalties for an invasion or violation of privacy are based on what type of legal action was filed as well as the laws that apply. Other potential consequences may include: 

  • Compensating a plaintiff for losses they incurred by a violation;
  • Having to amend various security policies or settings, especially in a public place of employment, such as public schools; and
  • Complying with an injunction that is issued by the court.

Do Employee Social Media Privacy Laws Apply to My Social Media Activity Outside of Work? 

Whether employee social media privacy laws apply to social media activity outside of work is a complex question. Protections are provided for an individual’s right to privacy from an employer during their non-working hours.

Both the United States Constitution and certain state constitutions have been interpreted to include a right to privacy. Each state has laws which protect the privacy of individuals. 

Some states also have laws which specifically prohibit an employer from looking into the lawful private conduct of an employee during non-working hours. In other words, state laws prohibit an employer from entering an employee’s home or tracking their movements using wearable technology without their permission as well as asking an employee questions about their personal life unless the employee brings up the topic first.

Should I Hire a California Employment Law Attorney? 

Yes, it is essential to have the assistance of an California employment law attorney for any social media privacy issues you may be facing. Employer social media policies are relatively new issues. They do, however, share similarities with other types of business and employment agreements.

Your attorney can review the social media policy terms, ensure your rights are protected, and represent you if any disputes or conflicts arise. Your attorney can also help you negotiate with an employer to come to an agreement or remedy for a dispute regarding social media.