On Monday, May 5, 2013, New Jersey Governor Chris Christie issued a conditional veto of Assembly Bill No. 2878, the controversial piece of proposed legislation that sought to bar most employers from requiring current or prospective employees to provide user names or passwords to social networking accounts and from inquiring as to whether current or prospective employees even had social networking accounts.
In his veto message, Governor Christie recognized the importance of protecting the privacy of job candidates and employees at the heart of the “well-intentioned” bill, but noted that such privacy concerns “must be balanced against an employer’s need to hire appropriate personnel, manage its operations, and safeguard its business assets and proprietary information.”
Accordingly, Governor Christie recommended several amendments to the bill. First, the conditional veto deleted the entire section of the bill prohibiting employers from requiring or requesting that an employee or prospective employee disclose whether he or she has a social networking account. The conditional veto also struck the section of the bill providing a private right of action to aggrieved employees and prospective candidates against employers. In an apparent effort to offer more protections to employers, the conditional veto added language granting employers the right to conduct investigations to ensure compliance with applicable laws, regulations or “prohibitions against work-related misconduct” based on specific information on an employee’s personal account and also the right to investigate employee’s actions regarding the transfer of certain proprietary information to an employee’s personal account. Finally, the conditional veto granted employers the right to view, access or utilize information about current or prospective employees that can be obtained in the public domain.
Notably, the conditional veto did not alter the section of the bill prohibiting an employer from requiring or requesting current or prospective employees to provide user names or passwords to their social networking accounts.
Now the Assembly must vote on the bill incorporating Gov. Christie’s recommended amendments. With the high level of bipartisan support the bill has garnered, as evidenced by its passage in the Senate (38-0) and in the Assembly (75-2), it is likely the vote will happen sooner rather than later.
Lindsay J. Jarusiewicz is an Associate in the Gibbons Employment & Labor Law Department.