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Social Media Mania — Be Careful Out There!

Employers are increasingly turning to social networking sites to find additional information about candidates. In fact, recent articles suggest that an applicant’s failure to have a social media presence is viewed by many employers as a decided negative, and a 2006 CareerBuilder survey found that 70 percent of employers use social networking sites to research candidates, a number that certainly has gone up since the survey was conducted.

While employers are understandably interested in getting as much useful information as they can about candidates, they should also be aware of the restrictions California law imposes on access and use of social media. Since 2013, California Labor Code Section 980  has prohibited employers from requiring or requesting an employee or applicant to disclose a username or password for the purpose of accessing the employee’s or applicant’s personal social media. See Cal. Employment Law Update New California Law Protects Employee Use of Social Media” (Sept. 28, 2012) for a discussion of the statute.

Employers also need to be alert to the fact that in viewing an applicant’s public social media, they may obtain information that they are prohibited from considering (e.g., an applicant’s race, age or nationality, previous criminal convictions, possible pregnancy status, disabilities, etc.).

As social media grows ever larger and more popular, employer use of such sites in assessing job applicants will only increase. While social media may provide a fertile source of information, employers must remain alert to comply with California law and not unwittingly obtain or use information that they may not permissibly use.

© 2020 Proskauer Rose LLP. National Law Review, Volume VIII, Number 229


About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

Harold Brody, Employment Attorney, Proskauer Rose Law Firm

Hal Brody is a Partner in the Labor & Employment Law Department. His practice is characterized by its diversity and he has represented employers in virtually every facet of labor and employment law.