On April 5, 2013, Governor Chris Christie issued a conditional veto of New Jersey’s proposed “Facebook law” (A-2878), which is intended to prohibit employers from inquiring about or otherwise accessing applicants’ and employees’  personal social networking accounts. Describing the bill as overbroad but well-intended, Governor Christie proposed several common sense modifications to the bill that should be welcomed by employers. If passed by the legislature in its revised form, the bill would still prohibit an employer from requiring or requesting that any current or prospective employee disclose a user name or password to a personal social networking account. However, employers would be able to access and utilize any social networking information in the public domain, employers would be permitted to inquire whether an individual has a personal social networking account, private causes of action would no longer be available to employees, and employers would have the right to investigate workplace misconduct related to personal social networking accounts.

First, the conditional veto struck the entire section of the bill that would prohibit employers from simply inquiring whether an applicant or employee has a personal social networking account. Governor Christie specifically noted how such broad language could create unintended consequences for employers and employees alike. For example, the Governor suggested that, if passed, this portion of the bill would prevent marketing or technology-based industries “from asking about the candidate’s use of social networking so as to gauge the candidate’s technological skills and media savvy.” Notably, the veto does not disturb the language in the bill barring employers from requiring disclosure of user names or passwords.

Second, the conditional veto also struck the entire section of the bill that sought to create a private cause of action against employers (with money damages and attorneys’ fees among the available remedies) for violations. Under the revised bill, an individual can still report a violation to the Commissioner of Labor and Workforce Development, and employers are still liable for civil penalties of as much as $1,000 for an initial violation and as much as $2,500 for any subsequent violation.

Finally, the revised bill includes language that expressly protects an employer’s right to implement policies protecting legitimate business interests and to access and use any social networking information available in the public domain. The added language specifically grants an employer the right to:

• conduct an investigation upon receipt of specific information that an employee engaged in work-related employee misconduct on his or her personal social networking account (to ensure compliance with laws, regulations, or prohibitions prohibiting that misconduct);  
• conduct an investigation upon receipt of specific information that an employee may be engaging in  “unauthorized transfer of…proprietary information, confidential information or financial data…” to his or her personal account; and
• View, access, or utilize any social networking information about an applicant or current employee that can be obtained in the public domain.

Notably, the bill passed through the General Assembly by a vote to 75-2, making it likely that the legislature would have overruled an outright veto. However, within his conditional veto, Governor Christie praised the sponsors of what he called an overbroad but “well-intentioned bill,” and legislators have initially appeared willing to consider the Governor’s modifications to the bill. For a more in-depth discussion of the bill’s original language, see our March 2013 edition of the New Jersey eAuthority.

Mark Diana is the Managing Shareholder of Ogletree Deakins’ Morristown office. Evan Shenkman is Senior Knowledge Management Counsel at Ogletree Deakins based in the firm’s Morristown office. Christopher G. Elko is an associate in the Morristown office of Ogletree Deakins.