New Jersey Becomes Latest Jurisdiction to Pass Social Media Privacy Laws for Employees

by Saul Ewing Arnstein & Lehr LLP
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Summary

On August 29, 2013, New Jersey became the latest jurisdiction to enact legislation which prohibits employers from requiring job candidates or current employees to provide their user names and passwords to personal social media accounts. The prior version of the bill was conditionally vetoed by Governor Christie on May 6, 2013, based on concerns about its lack of safeguards for employers. Lawmakers addressed Governor Christie’s concerns and New Jersey now joins twelve other states that have enacted similar social media legislation.

Background

The Garden State’s newly enacted social media privacy law prohibits employers from requesting the user name, password or other information used to access the personal social media account of a current or prospective employee as a condition of his or her employment. As defined, “personal account” is an “account, service or profile on a social networking website that is used by a current or prospective employee exclusively for personal communications unrelated to any business purposes of the employer.” In addition to prohibiting employers from requesting this information, the law also prohibits an employer from requiring current or prospective employees to waive their rights under the law as a condition of employment and any such waiver is void as against public policy. As with many other New Jersey employment statutes, the social media privacy law prohibits employers from retaliating or discriminating against individuals for the exercise of protected rights under the statute.

The prior legislation, which was conditionally vetoed by Governor Christie, included a private right of action, with fee shifting, for violations of the act. In response to the Governor’s concerns, the state legislature eliminated the provisions that forbid employers from merely asking candidates or employees whether they have social media accounts and that allowed individuals the right to sue employers for violations of this new law. Thus, there is no private right of action and the law will be enforced by the New Jersey Department of Labor and Workforce Development with civil penalties of up to $1,000 for a first violation, and up to $2,500 for subsequent violations.

The social media privacy law makes clear that employers are permitted to access and use social media information in the public domain, namely content on an individual’s social media account that is not privacy protected. The law also permits employers to access and use any social media accounts that a current or prospective employee uses “for business purposes of the employer or to engage in business-related communications.” The law contains no provisions that relate to an employer “friending” an employee on a social media site.

Last, the law expressly provides employers with the right to investigate employee conduct with respect to use of a personal social media account (1) for purposes of ensuring compliance with applicable laws, regulations or prohibitions against work-related misconduct, where the employer has received specific information about activity on an employee’s account; or (2) safeguarding an employer’s proprietary or confidential information, or financial data when the employer receives specific information about an individual’s unauthorized transfer of such information to the individual’s account.

What It Means For Employers

New Jersey employers should review their hiring practices and social media policies to ensure they do not run afoul of the new law. Additionally, employers should conduct training for managers, supervisors and hiring personnel on what is prohibited by the new law to avoid penalties imposed by the Department of Labor and Workforce Development.

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Saul Ewing Arnstein & Lehr LLP
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