Privacy

February 3, 2023

Appellate Court Ruling on Data Security Could Affect New Jersey Employees’ Rights

The U.S. legal system has much to say about employees’ duty to safeguard their employers’ proprietary or confidential information. Employees entrust a substantial amount of personal identifying information (PII) to their employers, but New Jersey employment laws have not defined employers’ legal duty to keep this information secure nearly as well. A recent decision from the Third Circuit Court of Appeals allows an employee’s privacy lawsuit against her former employer to proceed. The employee alleged negligence and other common-law claims after a data breach allowed hackers to obtain her PII and publish it on the “dark web.”

Most New Jersey employment laws relating to employee privacy address employers’ actions. A law that took effect in 2022, for example, prohibits employers from installing tracking devices on vehicles that employees drive without notifying them first. A 2013 New Jersey law prohibits most employers from compelling employees to provide access to their social media accounts. Federal laws like the Stored Communications Act could apply to employers who access employees’ private email accounts without permission.

An employer’s legal duty to protect employees’ PII from data breaches is less clear. PII may include birthdates, Social Security numbers, driver’s license numbers, and other information that fraudsters often find quite valuable. Identity theft and related crimes are a serious problem, resulting in billion of dollars in losses every year. The Federal Trade Commission (FTC) reports that it received almost 1.4 million reports of identity theft from consumers in 2021.
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January 20, 2023

What the Federal Pardons for Cannabis Possession Could Mean for New Jersey Employees

by Resnick Law Group, P.C.

The legal status of cannabis has gone through a number of changes in recent years, at least at the state level. Cannabis remains illegal under federal law. Medical use of cannabis has been legal under New Jersey law, however, for over a decade. A state law allowing limited possession and use for recreational purposes took effect in 2021. These changes impact New Jersey employment laws with regard to issues like mandatory drug testing, drug-free workplaces, and the use of a now-legal substance by employees outside of work hours. In October 2022, the White House announced that the president would be issuing pardons for people with federal convictions for simple cannabis possession. This raises questions about how New Jersey and federal laws relating to the use of criminal history in employment decisions will affect pardoned workers.

New Jersey Criminal History Discrimination

Criminal history is not a protected category under federal or state employment discrimination laws. Workers who have arrest or conviction records do, however, have some protection during the job application process. Many employers have tried to screen applicants with criminal records, even if an applicant’s particular history would have no bearing on the job they are seeking. This makes it all but impossible for thousands of people to find work.

Under the Opportunity to Compete Act (OTCA), New Jersey employers may not ask job applicants about criminal history at the beginning of the hiring process. The statute allows employers to make inquiries about criminal history once an applicant has completed an initial interview. Exceptions apply for certain jobs, such as law enforcement or professions where another state or federal law requires a criminal background check.
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September 23, 2022

Updated COVID-19 Guidance for New Jersey Employers

by Resnick Law Group, P.C.

The COVID-19 pandemic has presented numerous employment law challenges. Employers, employees, government regulators, and others have had to balance financial needs, public health, and workplace safety. The Centers for Disease Control and Prevention (CDC) has issued various guidelines related to testing and isolation. The Equal Employment Opportunity Commission (EEOC) has addressed questions about what employers may require of their employees under laws like the Americans with Disabilities Act (ADA). These agencies have modified their guidelines as our knowledge about the coronavirus has increased, and as pandemic conditions have changed. Recent updates present relaxed standards for workplace safety, mandatory COVID testing, and other matters. New Jersey employees should be aware of their rights under both federal and state laws. If you have questions about COVID-19 guidelines at your workplace, please contact a New Jersey employment lawyer to discuss.

EEOC guidance on testing

On July 12, 2022, the EEOC updated the guidance document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” One of the main issues the document addresses is whether the ADA allows employers to require COVID-19 testing among employees. Generally speaking, the ADA requires any medical examinations or inquiries by employers to be “job-related and consistent with business necessity.” A medical condition that presents a “direct threat” to others in the workplace usually meets this requirement.

In the early days of the pandemic — particularly before a vaccine became widely available — the EEOC concluded that mandatory testing was acceptable because of the broad risk posed by exposure to the coronavirus. Much has changed since 2020. The agency has modified its interpretation of “business necessity” in light of improved public health measures, while also considering the ongoing mutation of the virus.
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February 4, 2022

New Law Will Prohibit New Jersey Employers from Using Tracking Devices in Vehicles Without Notifying Employees

by Resnick Law Group, P.C.

Employees’ privacy rights are becoming an increasingly important issue. When many people began working from home because of the COVID-19 pandemic, questions arose about how much their employers could monitor their activities. Even before then, some employers were using potentially intrusive technologies to collect data about their employees. New Jersey’s governor recently signed a bill that will address one type of technology that employers might use to track employees. The new law requires employers to notify an employee before using any sort of device to track the movements of a vehicle driven by that employee. While the bill originally imposed criminal penalties on employers, the final version uses civil penalties instead.

Current New Jersey employment law provides a patchwork of privacy protections for employees. A law passed in 2013, for example, bars employers from requiring employees and job applicants to provide user names or passwords for “personal accounts,” including email and social media accounts that are not connected to those individuals’ employment. At the federal level, the Americans with Disabilities Act restricts the types of questions employers may ask about employees’ health and health history.

The new law, A3950, was signed by the governor on January 18, 2022. It takes effect on April 18. The law deals with the use of “electronic communications devices” and “tracking devices” in vehicles. Employers may want to track the movements of vehicles operated by employees during work hours for a variety of legitimate reasons, including simply wanting to confirm that employees are working during those hours. The sheer amount of tracking technology available now, however, has led to substantial privacy concerns.
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January 3, 2022

DOJ Settles Disability Discrimination Lawsuit Against New Jersey Rail Service

by Resnick Law Group, P.C.

Two federal laws, the Americans with Disabilities Act (ADA) of 1990 and the Genetic Information Nondiscrimination Act (GINA) of 2008, protect employees from discrimination on the basis of disability. Part of this protection involves prohibiting inquiries into employees’ medical histories that are not specifically related to those employees’ jobs. The U.S. Department of Justice (DOJ) recently announced that it had settled claims against a New Jersey rail line for allegedly conducting medical examinations and requesting health information from employees in violation of both statutes. If you have been subjected to disability discrimination in the workplace, reach out to a New Jersey employment lawyer as soon as possible.

The ADA prohibits employers from discriminating against employees and job applicants on the basis of disability. Employers may not require medical examinations of job applicants or employees under the ADA, except to ask about or assess their ability to perform specific job duties. They may require a medical examination for new hires if the examination is the same for every new employee in the same category “regardless of disability.” The ADA allows mandatory medical examinations of employees if they are “job-related and consistent with business necessity.” All other medical examinations or inquiries are prohibited.

GINA protects employees’ and job applicants’ “genetic information,” which it defines as information obtained from genetic tests an individual or their family members, as well as “the manifestation of a disease or disorder” in the individual’s family members. Employers may not request genetic information from employees or job applicants, nor may they request or obtain such information from any third party, except in specific situations. Exceptions include authorization by the employee or job applicant; publicly-available information in a newspaper or book; and “genetic monitoring of the biological effects of toxic substances in the workplace,” provided that the employer has notified the employee and obtained their written consent.
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June 25, 2021

How New Jersey Employment Laws Protect Job Applicants During the Hiring Process, Part 2: Background Checks and Social Media

by Resnick Law Group, P.C.

People looking for jobs in New Jersey have the protection of federal and state employment laws addressing issues like wages, overtime compensation, and workplaces that are free of discrimination and harassment. To protect job applicants’ privacy rights, New Jersey law limits how employers can conduct background checks on prospective hires, and on how they can use information obtained from an applicant’s credit or criminal history. The following is the conclusion of our two-part series about New Jersey laws that protect job applicants’ rights.

Use of Credit History in Hiring

At the federal level, the Fair Credit Reporting Act (FCRA) regulates consumer reporting agencies (CRAs), which are companies that compile information about consumers, and package that information in report form in exchange for a fee. The reports, known as consumer reports or credit reports, often include sensitive personal information that most people would rather remain private. The FCRA restricts the use of credit reports to a small number of situations, including employment.

New Jersey law largely mirrors the language of the FCRA. Under both laws, an employer needs a job applicant’s written consent in order to obtain a credit report. New Jersey goes a step further than the FCRA, however, by requiring employers to give job applicants a written disclosure stating that credit reports “commonly include[] information regarding the [applicant]’s character, general reputation, personal characteristics, and mode of living.” The employer must provide the applicant with a copy of the report upon request.
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April 9, 2021

Bill Pending in New Jersey Legislature Would Restrict Use of Biometric Data by Employers, Others

by Resnick Law Group, P.C.

Employers in New Jersey use increasingly high-tech methods to monitor their employees throughout the work day. Some of these methods raise concerns about employee privacy, especially systems that collect biometric data. “Biometrics” refers to the automated use of physical characteristics to identify individuals. For example, many smartphones give users the options of unlocking their devices with fingerprint or facial recognition software. Some employers use this kind of technology to control access to worksites or track employees’ time. This means that each time an employee passes a checkpoint or enters the employer’s premises, the employer captures an image of their face, fingerprint, or other unique identifying feature. Employees have an interest in knowing how employers are using this information, and how securely they are storing it. Currently, no law in New Jersey regulates the collection, storage, and use of biometric data. A bill pending in the New Jersey Assembly would address this issue and provide a path forward for New Jersey employment lawyers and their clients.

Under New Jersey law, employers may not intrude into areas where employees have a reasonable expectation of privacy. Unreasonable searches of private areas in the workplace, such as an employee’s locker, may violate an employee’s legal rights. Surveillance of phone or computer use is allowed by law, as long as it is reasonably related to the employer’s business. Video monitoring of common areas is not unusual, particularly in retail or warehouse settings. Intrusive surveillance that serves no legitimate business purpose could be unlawful. In extreme cases, such as video monitoring of a restroom or changing area, it could even be criminal.

Biometric surveillance is, in one sense, an extension of video surveillance. Since it results in the collection of data that could be used to identify specific individuals, it is also analogous to the collection of Social Security numbers and other information best kept private. Few states currently have laws addressing the collection of biometric data. Illinois enacted the first such law, the Biometric Information Privacy Act (BIPA), in 2008. Other states have passed similar laws since then. BIPA remains the only law that allows private causes of action for violations.
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November 20, 2020

What Are Employees’ Privacy Rights in New Jersey During a Global Pandemic?

by Resnick Law Group, P.C.

The COVID-19 pandemic has now entered its ninth month in the United States. After extensive lockdowns in March and April 2020, cities and states around the country struggled with finding ways to reopen their economies without risking public health. Many New Jersey employees had to adapt quickly to a home office environment. Workers deemed “essential” had to continue reporting to their jobs, often with added safety measures intended to inhibit the spread of the novel coronavirus. Some of the new measures used by employers raise important questions about employee privacy rights in New Jersey.

New Jersey Workplace Privacy Laws

As a general rule, employees do not have an expectation of privacy when they are at work, on the clock, and using their employer’s property. Employers can, with some exceptions, access emails sent by employees using a company email address, or search employees’ desks and other areas in the workplace. Employees’ personal property, such as cell phones, purses, and wallets, are subject to greater legal protection.

New Jersey recognizes several common-law claims for privacy violations, including intrusion upon seclusion, which protects a person’s “private affairs or concerns.” With more workers doing their jobs remotely, often using videoconferencing technologies that allow employers to see into their homes, these concerns have become much more pressing.

March 21, 2019

What Fitness Trackers in Workplaces in New Jersey and Around the Country Could Mean for Employees’ Rights

by Resnick Law Group, P.C.

Technology is constantly providing new ways to help both employers and employees in New Jersey. Unfortunately, sometimes a technology that helps employers does so at employees’ expense. Our legal system can be slow to catch up with new innovations. Fitness trackers, which are devices individuals can wear to track movement and other vital statistics, are becoming more and more common. Many employers have taken notice of this. A recent Washington Post article describes fitness trackers as “an increasingly valuable source of workforce health intelligence for employers.” Employers’ access to, and use of, employees’ fitness tracker data raises concerns about privacy. In some cases, it could raise concerns about employment discrimination. Federal and New Jersey employment laws prohibit discrimination on a wide range of factors, and protect privacy in certain areas. Opinions are mixed on the extent to which they cover fitness tracker data.

Arguably, employers use employee fitness tracker data to monitor performance. The devices record information about an employee’s movement, or lack thereof. This could be relevant to job performance, but it could also present problems. The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees and job applicants on the basis of disability. N.J. Rev. Stat. § 10:5-12(a). The statute defines this term very broadly, covering a wide range of physical and mental conditions that “prevent[] the normal exercise of any bodily or mental functions.” Id. at § 10:5-5(q). At the federal level, the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008, also prohibits employment discrimination. This statute’s definition of “disability” includes both actual and perceived disabilities. See 42 U.S.C. §§ 12102(1)(C), 12112.

State and federal antidiscrimination law also prohibit discrimination by employers based on genetic information. This could be an issue for employers using fitness tracker data in some situations. The NJLAD defines “genetic information” as “information about genes, gene products or inherited characteristics.” N.J. Rev. Stat. § 10:5-5(oo). The plain language of the statute suggests that the information does not have to come from a genetic test ordered by the employer. The federal Genetic Information Nondiscrimination Act (GINA) focuses more specifically on genetic testing. It defines “genetic information” as information derived from a person’s genetic test or that of a family member, or “the manifestation of a disease or disorder” in a member of that person’s family. 42 U.S.C. §§ 2000ff(4)(A), 2000ff-1(a).
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January 4, 2019

The Uncertain Privacy of Genetic Information, and How It Could Affect New Jersey Employees

by Resnick Law Group, P.C.

Employment discrimination on the basis of genetic information is an important area of law that has not received as much attention as other forms of discrimination. This is partly because the laws protecting against genetic information discrimination have not been on the books very long. At the federal level, the Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits various types of discrimination in employment and health insurance. The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination by employers based on specific genetic traits. This area of law is likely to gain prominence as a wider range of genetic information becomes available. Multiple companies conduct genetic testing to provide genealogy information to consumers. They are then able to use those consumers’ genetic information in a variety of ways that are not well understood. Privacy laws and consumer contracts are likely to play as important a role as employment statutes in New Jersey and around the country. If you have questions of this nature, reach out to a New Jersey employment discrimination attorney.

GINA defines “genetic information” as information obtained from “genetic tests” of an individual or their family members, or from “the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C. § 2000ff(4)(A). It defines a “genetic test” as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites,” provided that it is able to “detect genotypes, mutations, or chromosomal changes.” Id. at § 2000ff(7). The statute prohibits discrimination by employers based on genetic information, using language that is similar to the prohibitions on employment discrimination found in Title VII of the Civil Rights Act of 1964. Id. at §§ 2000ff-1(a), 2000e-2(a).

Under the NJLAD, an employer commits an “unlawful employment practice” if they discriminate on the basis of an “atypical hereditary cellular or blood trait of any individual,” or an individual’s “refusal to submit to a genetic test or make available the results of a genetic test to an employer.” N.J. Rev. Stat. § 10:5-12(a). The statute specifically identifies the following traits: “sickle cell trait, hemoglobin C trait, thalassemia trait, Tay-Sachs trait, or cystic fibrosis trait.” Id. at §§ 10:5-5(x)-(cc). Its definition of “genetic test” is similar to the one found in GINA. Id. at § 10:5-5(pp).
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