New Jersey Joins Growing Number of Jurisdictions Banning Employers from Requesting Access to Social Media Accounts

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On August 29, 2013, New Jersey Governor Chris Christie signed into law Bill A. 2878, which prohibits New Jersey employers from requiring job candidates or current employees to turn over their user names and passwords to personal social media accounts. Effective December 1, 2013, this law aligns New Jersey1 with Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah, Vermont and Washington, which have already enacted legislation banning employers from requesting access to password-protected material on employees' social media accounts on sites like Facebook, Twitter and LinkedIn. Similar bills are in the legislative pipeline in multiple other jurisdictions.

Governor Christie conditionally vetoed an earlier version of this bill on May 6, 2013, based on concerns about its lack of safeguards for employers. Lawmakers addressed Governor Christie's concerns by eliminating provisions in the earlier bill 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.

Prohibited Conduct

The law bans 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. The law defines "personal account" as "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." (emphasis added).

The law also bars employers from requiring current or prospective employees to waive their rights under the law as a condition of employment.

Like many New Jersey employment statutes, this law prohibits employers from retaliating or discriminating against individuals for the exercise of protected rights under the statute. Employers may not retaliate or discriminate against applicants or employees for refusing to provide access to personal social media accounts or for testifying, assisting or participating in an investigation, proceeding or action concerning an alleged violation of the law.

This law will be enforced by the New Jersey Department of Labor and Workforce Development, and as enacted, does not provide for a private right of action by aggrieved individuals. The law provides for civil penalties of up to $1,000 for a first violation, and up to $2,500 for subsequent violations, collectible by the Commissioner of the New Jersey Department of Labor and Workforce Development.

Permissible Conduct

The law expressly permits employers to access and use social media information in the public domain, that is, the content on an individual's social media account that is not hidden behind privacy settings. 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."

Additionally, the law empowers employers to investigate employee conduct with respect to use of a personal social media account for purposes of (1) 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 information, confidential information or financial data upon receipt of specific information about an individual's unauthorized transfer of such information to the individual's account.

What This Means for New Jersey Employers

New Jersey employers should review their hiring practices, social media policies, and policies governing use and monitoring of electronic devices and communications to evaluate how this new law impacts their current policies and procedures. Additionally, employers should educate managers, supervisors and hiring personnel on the parameters of this new law to avoid the potential for penalties imposed by the Department of Labor and Workforce Development.

Note

  1. Earlier in 2013, New Jersey enacted similar legislation that prohibits higher education institutions from requiring students to provide access to personal social media accounts. With this new law, New Jersey expands its privacy protections for social media accounts to employees and prospective employees.