On August 29, 2013, Governor Chris Christie signed a bill that prohibits most employers from requiring employees or prospective employees to disclose user names and passwords for social networking accounts like Facebook, Twitter and LinkedIn. The new law, which goes into effect December 1, 2013, makes New Jersey the 13th state to enact legislation protecting the social networking accounts of employees. The Gibbons Employment Law Alert previously covered the proposed bill before it became law.
Governor Christie signed Assembly Bill No. 2878 despite issuing a conditional veto of the bill back in early May 2013, citing concerns that the original draft of the bill was “too broad” and neglected to appropriately safeguard employers’ business needs. The Governor’s conditional veto deleted a section of the bill that prohibited employers from requesting an employee or prospective employee to disclose whether he or she has a social networking account, as well as a section of the bill that permitted employees and prospective employees to bring a civil action over alleged violations. Accordingly, no private right of action exists.
The law prohibits employers (not including the Department of Corrections, State Parole Board, county corrections departments, or any State or local law enforcement agencies) from requiring or requesting “a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to, a personal account through an electronic communications device.” However, a “personal account” does not include social networking website accounts used by employees or prospective employees “for business purposes of the employer or to engage in business related communications.”
The law also prohibits employers from retaliating or discriminating against individuals for exercising their protected rights under the statute, specifically for (1) refusing to provide or disclose any user name or password, or in any way provide access to, a personal account through an electronic communications device; (2) reporting an alleged violation of the law to the Commissioner of Labor and Workforce Development; (3) testifying, assisting or participating in any investigation, proceeding or action concerning a violation or the law; or (4) otherwise opposing a violation of the law.
The law, as revised by Governor Christie, expressly permits employers to view, access or utilize information about a current or prospective employee that can be obtained in the public domain. It also allows employers to conduct investigations to ensure compliance with applicable laws, regulations or “prohibitions against work-related employee misconduct based on the receipt of specific information about activity on a personal account by an employee” and to investigate employee’s actions regarding proprietary information, confidential information or financial data.
Individuals asserting claims under the new law must report the alleged violation to the New Jersey Department of Labor and Workforce Development. Employers who violate the law are subject to a civil penalty of up to $1,000 for the first violation and $2,500 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.
Employers should consider the new law when preparing social media and electronic communications policies and enforcement measures. For answers to questions regarding social media issues, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.