Conducting Social Media Checks of Police Applicants

The new year has brought some changes in how California police background investigators shall summarize the results of their background investigation in their narrative report. The report must include sufficient information for the agency head to extend, as appropriate, a conditional offer of employment. As a result, the background investigators report shall reference the background investigation shall include findings obtained through the social media search per POST regulation 1953(e)(12). The regulation states in part that every peace officer candidate shall be the subject of a social media search for statements, postings, and/or endorsements made by the candidate that are relevant to suitability for peace officer employment, including bias-relevant information consistent with the requirements of Commission Regulation 1955(d)(3).

The social media check requires that a search be conducted of postings made by the candidate to determine suitability for peace officer employment, regardless of where the postings are made, 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. It does not, however, require nor permit infringement of a candidate’s privacy rights.

All searches must be conducted in accordance with state and federal laws. Only information that is relevant to peace officer suitability should be reported and documented. This would include evidence of bias-related behaviors, traits and/or attributes, illegal and/or immoral behaviors, or other behaviors that indicate unsuitability to be a peace officer. This could also include evidence that may mitigate past behaviors, such as positive character traits and/or activities that indicate that the individual has matured and/or rehabilitated. All results should be directly related to either the background investigation dimensions or the bias assessment framework. Employers should not be provided information that is protected under fair employment laws, privacy provisions, or any information that is not relevant to peace officer suitability. This may include pregnancy status, religion, disability information, political affiliation, and sexual preference to name a few. Results should be restricted to candidate information only.

Proof shall consist of documentation verifying a social media search was conducted which, at a minimum, shall include written documentation of websites searched and/or services used, including webpage URLs and findings. When there is evidence of activity relevant to peace officer suitability, documentation shall consist of screenshots, printouts, website links, and/or other documentation verifying the information and shall be limited to that which is relevant to suitability for peace officer employment.

Social Media Content Considerations

POST requirements – bias screening, immoral behavior, illegal activity, background investigation dimensions and general behavior indicative of unsuitability

· Publicly available

· Seek legal counsel advice with regard to private social media accounts

· Careful consideration of protected information

· Restrict to candidate information only

· Number of followers/friends etc. should not to be considered

Searchable sites may include, but not be limited to:

· Social networking (e.g., Facebook, Instagram, LinkedIn)

· Blogs (e.g., Twitter)

· Video (e.g., YouTube, TikTok)

· Forums (e.g., Quorum, Reddit)

Reporting Limits and Considerations

· Report only information relevant to peace officer suitability

· Do not include information about others

· Redact irrelevant information

· Verify accuracy of information

· Provide sources – URLs, webpages

· Provide documentation – screenshots, printouts, etc.

How far back should the social media search be conducted (e.g., should only recent social media postings be reviewed)? It depends. A younger candidate may not need as lengthy of search as an older candidate. Evidence of unsuitable behavior may necessitate a longer history search to determine patterns of behavior. Departments should establish a cyber-vetting policy to ensure that all candidates are being treated in a fair and consistent manner.

Where in the background file should the social media findings be placed? Documentation (e.g., printouts, screenshots) should be included under Tab L – Relatives/Personal References. The Tabs are in the process of being updated with the new regulation requirements and SB-2 information. In general, the location of current Tab information will not change. Social media findings, including bias-relevant information, must be included in the narrative report.

State and Federal Laws

While the Legislature may have so intended in enacting Labor Code section 980 (because, among other things, an example given as a justification for it was a background investigation of a Maryland correctional officer) no provision was included in the legislation specifically applying it to public agencies. While this may have been an oversight, a subsequent legislative attempt to clarify its applicability to public agencies did not survive the Legislative process. Therefore, as it currently stands, the law is not clear-cut on this issue, especially when considering legislative history and intent. Thus, departments are encouraged to work with their legal counsel to develop a cyber-vetting policy to address this and other relevant laws.

Labor Code 980(a) As used in this chapter, “social media” means an 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.

(b) An employer shall not require or request an employee or applicant for employment to do any of the following:

(1) Disclose a username or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media, except as provided in subdivision (c).

(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

POST Regulation 1953(e)(12) Social Media Check

(A) Every peace officer candidate shall be the subject of a social media search for statements, postings, and/or endorsements made by the candidate that are relevant to suitability for peace officer employment, including bias-relevant information consistent with the requirements of Commission Regulation 1955(d)(3). Social media may include, but not be limited to, social networking sites, online forums, blogs, and video sharing platforms. Searches must be conducted in compliance with state and federal laws.

(B) Proof shall consist of documentation verifying a social media search was conducted which, at a minimum, shall include written documentation of websites searched and/or services used, including webpage URLs and findings. When there is evidence of activity relevant to peace officer suitability, documentation shall consist of screenshots, printouts, website links, and/or other documentation verifying the information and shall be limited to that which is relevant to suitability for peace officer employment.

Other Laws

Federal Equal Employment Opportunity Commission (EEOC) Fair Employment and Discrimination Laws o Prohibited Employment Policies and Practices: https://www.eeoc.gov/prohibited-employment-policiespractices

EEOC Social Media in the Workplace: Examining Implications for Equal Employment Opportunity Law (EEOC Meeting of March 12, 2014) § Press Release § https://www.eeoc.gov/meetings/meeting-march-12-2014-social-media-workplace-examining-implications-equal-employment

California Department of Fair Employment and Housing (DFEH) o Employment Discrimination

State and Federal Fair Credit and Investigator Consumer Reporting Requirements o ICRAA (California Civil Code §1786, et seq.) o FCRA (5 U.S.C. §§ 1681)

The First Amendment to the United States Constitution

Case Law – regard should be given to cases specific to law enforcement employment, including First Amendment and relevant background issues