Executive Summary: On August 29, 2013, New Jersey Governor Chris Christie signed into law two pieces of legislation that will have a significant impact on employers. A-2878, the "Facebook bill," prohibits employers from requiring or requesting employees to disclose their name, password or other means for accessing their personal account on a social networking website. A-2648 amends the New Jersey Law Against Discrimination (NJLAD) to prohibit retaliation against employees who disclose or request pay information, including information regarding their compensation, benefits, or occupational category, based on a reasonable belief that there is a discriminatory pay practice occurring in the workplace.
The Facebook Bill
The new Facebook privacy law takes effect December 1, 2013. The legislature passed a prior version of the bill in March 2013, which Governor Christie conditionally vetoed after making significant changes. As enacted, the law:
Applies to all employers regardless of size (other than the Department of Corrections, State Parole Board, county corrections department or any state or local law enforcement agency).
Applies only to employees' personal social networking accounts, defined as those used by a current or prospective employee exclusively for personal communications unrelated to any business purpose of the employer.
Does not apply to any account, service or profile an employee maintains or accesses for the employer's business purposes or to engage in business-related communications.
The law prohibits discrimination and retaliation against individuals who:
refuse to provide or disclose their user name, password or otherwise provide access to a personal account;
file a complaint under the act or testify, participate or otherwise assist in an investigation of an alleged violation of the act; or
otherwise oppose a violation of the act.
Penalty: Unlike the prior version of the act, the law does not provide for individuals to file lawsuits for alleged violations. Instead, employers who violate the act will be subject to a civil penalty not to exceed $1,000 for the first violation and $2,500 for each subsequent violation, which will be collected by the Commissioner of Labor and Workforce Development in a summary proceeding.
Exceptions: The law specifically states that it does not prohibit an employer from implementing and enforcing policies regarding employer-issued electronic communications devices or accounts/services provided by the employer for business purposes. Additionally, the act does not prevent employers from conducting an investigation:
of work-related misconduct based on receipt of specific information about activity on a personal account by an employee; or
of an employee's actions based on receipt of specific information about the unauthorized transfer of an employer's proprietary information, confidential information or financial data to a personal account by an employee.
The law also does not prohibit an employer from viewing, accessing or using information about a current or prospective employee that is available on a public domain.
Governor Christie originally vetoed A-2648, which was part of a four-bill gender parity package the legislature passed last year, recommending the provision be included in the NJLAD instead of the New Jersey whistleblower statute. For more information on that legislation, please see our September 28, 2012 Legal Alert. In accordance with the governor's conditional veto, the provision has been added to the NJLAD. The new law prohibits employers from retaliating against employees who request information from another employee or former employee regarding the employee's job title, occupational category, compensation, gender, race, ethnicity, military status, or national origin to assist in an investigation of possible discrimination. The law also prohibits retaliation against employees who disclose such information in response to such a request. The new provision expands the scope of retaliation claims to include individuals investigating a potential discrimination claim, not just those who have actually filed a complaint of discrimination. The law was effective immediately.