New Jersey’s New Social Media Privacy Law: Balancing Employee Rights And Employer Protections

by Pepper Hamilton LLP
Contact

New Jersey has now joined the growing list of jurisdictions seeking to regulate the extent to which employers can monitor their workers’ social media presence. Currently, eleven other states – Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Mexico, Oregon, Utah, Nevada, and Washington – have social media privacy laws. Gov. Chris Christie signed the New Jersey measure into law last week after the Legislature unanimously accepted the governor’s amendments to a bill he conditionally vetoed last May. The law goes into effect on December 1, 2013.

The new law prohibits employers from requesting or requiring current or prospective employees to disclose their usernames, passwords, or any other access information for any “personal account” on a social media Internet site such as Facebook and Twitter. It also renders void any agreement to waive the new privacy protections and makes it unlawful for an employer to take adverse action against employees who refuse to provide information the employer is prohibited from requesting or against those who report alleged violations.

The statute’s prohibition is limited to inquiries about “personal accounts.” A “personal account” is defined as an account that the employee or applicant uses “exclusively for personal communications unrelated to any business purpose of the employer” and does not extend to any account, service or profile created, maintained, used or accessed by a current or prospective employee for either business purposes of the employer or to engage in business-related communications. The law’s language plainly does not extend to accounts created and maintained by the employer that relate to its business. It is less clear, however, whether the protections of the statute extend to accounts created and maintained by the employee that relate to both personal and business matters. For example, many people use their LinkedIn accounts to maintain personal and business contacts. It is not clear whether the statute would allow an employer to require an applicant or employee to provide access to all of his or her LinkedIn contacts, or only business contacts, or none at all.

The law further provides that employers may access any information available in the public domain about current or prospective employees. Thus, it prohibits the online equivalent of an employer eavesdropping on private social media communications, while still allowing companies to use information the employee chooses to make public. The statute also does not prohibit employers from inquiring whether an employee or applicant has social media accounts.

The statute also provides that, under certain circumstances, the prohibition against accessing personal social media accounts will not apply. For example, the law states that if an employer receives “specific information about activity on a personal account by an employee” that indicates the employee has engaged in “work-related misconduct,” or transferred the employer’s confidential information to a personal account without authorization, or otherwise failed to comply with applicable law, nothing in the act “shall prohibit the employer from conducting an investigation” into such conduct. Although the statute does not expressly say so, it appears the Legislature intended that such an investigation may include requiring an employee to provide access to his or her personal account for purposes of investigating the “specific information” the employer received that triggered the investigation.

This provision appears to provide a safe harbor for employers who receive complaints or other information about employee wrongdoing on social media and wish to investigate the allegations. Indeed, under New Jersey law, employers may have a duty in some circumstances to reasonably investigate certain allegations – such as reports of discriminatory harassment taking place through social media. Employers must be mindful, however, that recent decisions from the United States District Court in New Jersey suggest that access to a worker’s social media account such as Facebook as part of an investigation of alleged wrongdoing may violate the federal Stored Communications Act. Accordingly, investigatory conduct that may be permissible under New Jersey’s new social medial law may violate federal law if done improperly. Employers should exercise extreme caution and consult with counsel before requesting access to or accessing any employee’s social media account for investigative or other purposes.

In its original form, the state’s social medial law contained broad remedies for aggrieved employees. The changes suggested by the governor and approved by the Legislature, however, considerably temper the remedies available. As enacted, the statute does not provide the right to a private cause of action for job applicants and current workers. Instead, aggrieved employees may report violations to the New Jersey Commissioner of Labor and Workforce Development. Employers who violate the law are subject to $1,000 fines for first offenses and $2,500 fines for subsequent violations.

Although the statutory remedies are limited, it remains to be seen whether the New Jersey courts will recognize a common-law cause of action with much broader remedies for employees who are fired for refusing to provide access to personal social media accounts. New Jersey, like many other states, recognizes a common-law cause of action for wrongful termination in violation of “a clear mandate of public policy” and provides broad remedies for employees terminated in violation of a public policy expressed in a statute or regulation. Employees fired for refusing to provide access to their personal accounts in violation of this statute may well argue that the termination violates a clear mandate of public policy.

Employers have until December 1, 2013, to comply with the legislation, but they should begin reviewing current practices and revising relevant policies immediately to minimize legal risks. Social media policies or IT practices that compel disclosure of information prohibited by this new law should be discontinued. A review of hiring due diligence and candidate screening procedures is also in order.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!