Employee Social Media Rights Addressed by New Jersey Lawmakers

Employment law attorneys in
New York and New Jersey note a bill passed in the New Jersey Senate recently (A2878), which would forbid companies from requesting access to employees’ or applicants’ online social media accounts, including Facebook and Twitter. In addition, the legislation goes further by preventing employers from even asking if an employee or applicant has an account or profile on a particular social media site.

Companies could face the prospect of a $1,000 or $2,500 fine depending on if it is a first or second offense, and employees or prospective employees could sue for damages in the event they are denied employment or promotion because of an employer’s prying into social media content. Law enforcement agencies would be exempt from these regulations.Employers are also prohibited from asking candidates to waive protection under the bill as a condition of an offer of employment, and retaliation is prohibited for refusing to provide passwords, reporting a violation of the bill, or participating in an investigation of a violation.

The bill had bipartisan support, and Republican sponsor Senator Kevin O’Toole explained his support, saying, “Social networking users have the right and freedom to use their accounts to share private messages with family and friends, express their religions and sexual preferences, and post images and videos with family and friends.” O’Toole went on to say that employers have many tools during the job application process to evaluate potential employees for their qualifications for employment.

Another sponsor, Republican Senator Diane Allen, made an analogy to the right to privacy people have in their homes and with physical mail. Many privacy and employee rights advocates have also questioned why employers would have greater access to personal information about an employee or applicant simply because it is posted on an online social media network.

While labor attorneys who represent large businesses are saying that the practice of asking for social media passwords is not widespread and the bill is unnecessary, legislation such as this has become increasingly common to protect employee rights. Maryland and Illinois have passed similar laws.

Granting employers and potential employers access to social media accounts can lead to a host of information being discovered that can be used to discriminate against an employee or candidate for employment, from discovering that an employee or candidate is pregnant, learning of health conditions, to simply learning the employee or candidate’s age or marital status.

The proposal banning employers from requiring that New Jersey employees or applicants disclose social media log-in information is in the Assembly for concurrence and would then need to go to Governor Chris Christie for his signature.

If you need to speak to an employment law attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or (646) 867-7997.

Additional Resources:

Senate bills ban employers from asking for workers’ social media passwords
, NJ.com, October 25, 2012
Senate Committee Passes O’Toole, Allen Legislation to Protect the E-Privacy of Job Seekers, SenateNJ.com, September 20, 2012
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