Privacy

April 19, 2013

New Jersey Legislature Passes Bill Protecting Employees’ Social Media Accounts from Employer Scrutiny

The New Jersey Legislature passed a bill in March 2013 that, if signed by the Governor, will be one of the strongest laws in the country protecting employees against online snooping by employers. Some employers have taken to requesting passwords or other access to social media accounts like Facebook from their employees, or as part of the job application process. At least five other states already have laws prohibiting employers from requiring employees to provide their passwords to their social media accounts. More than half of all U.S. states are reportedly considering such legislation.

The bill, A2878, was introduced in the New Jersey General Assembly on May 10, 2012, and first passed the Assembly on June 25. The New Jersey Senate passed an amended version of the bill, by a vote of 28-0, in October. The Assembly then passed the amended bill, with seventy-five voting in favor and two voting against, on March 21, 2013. The final bill applies to all employers in the state except for state and local law enforcement agencies. Earlier drafts also governed educational institutions.

Employers, the bill states, may not “require or request” any passwords or other form of access to an employee’s or job applicant’s personal social media or email accounts. It further prohibits employers from requiring employees or job applicants to disclose whether or not they have personal accounts on social media sites. An earlier version of the bill would have barred employers from even asking if an employee or applicant has such an account. Employers may not require a person to waive any of the protections of this bill as a condition of hiring, and they may not retaliate against an employee for exercising any rights guaranteed by the bill.
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December 21, 2012

Employee Social Media Rights Addressed by New Jersey Lawmakers

by Resnick Law Group, P.C.

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.
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March 14, 2012

Are New Jersey Employers Allowed to Ask for Access to a Job Applicant’s Facebook Account?

by Resnick Law Group, P.C.

If you’re reading this online blog, you almost certainly have at least one personal account on Facebook, Twitter, LinkedIn, or some other social media website. Your account is undoubtedly password protected, and if it is a Facebook or Twitter account (as opposed to a LinkedIn account, which tends to be more professional), you very likely have posts, photos, or other personal information on your page that you would prefer to keep private from a prospective employer.

However, a recent and disturbing trend is developing, as employers are increasingly demanding that job applicants provide their personal social media login information as part of the job application process. Some employers alternatively request a “shoulder surfing” session, during which job applicants log on to their social media accounts and navigate their posts while a nearby interviewer observes and reviews the applicant’s posts, photos, comments, tweets, likes, friends, followers, connections, groups, etc. The issue has become so concerning that the American Civil Liberties Union (or ACLU) and some state lawmakers have become involved, advocating for the privacy rights of job applicants.

The issue at stake is whether a prospective employer’s demand for personal social media login information of a job applicant, or request for a “shoulder surfing” session, violates the job applicant’s right to privacy. New Jersey courts have not yet decided the issue, but it is clear that, when the issue does present itself in Court, New Jersey employment lawyers representing public sector applicants (those who apply to work for a government employer) will have more arguments than New Jersey employment lawyers representing private sector applicants (those who apply to work for a private sector employer).
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