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.
Employers may face civil penalties for violations, and employees may bring private causes of action against employers. If an employer violates any of the bill’s restrictions, the aggrieved employee has one year from the date of the violation to file suit. The court may grant injunctive relief, compensatory damages, attorney’s fees, and costs. For job applicants, the calculation of damages may include the employer’s failure to hire the applicant. For current or former employees, injunctive relief may include reinstatement to the employee’s previous position, while damages may include back pay and lost benefits. The bill also authorizes the Commissioner of Labor and Workforce Development to impose a fine of up to $1,000 against an employer who violates any provisions of the bill, with fines increasing to $2,500 for every subsequent violation.
Six states, including New Jersey, enacted legislation in 2012 restricting employer access to employee social media accounts, according to the National Conference of State Legislatures (NCSL). A total of fourteen states introduced legislation last year addressing this issue. The NCSL reports that Utah has enacted a bill in 2013 protecting employee email and social media accounts and providing for private causes of action. At least thirty-three states have pending bills. Utah may be the only state currently to allow private lawsuits for violations of employees’ privacy rights, but New Jersey may soon join it.
If you need to speak to an employment attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or (646) 867-7997.
Assembly Bill No. 2878 (Third Reprint) (PDF file), as amended by the Senate on October 4, 2012 (source)
More Blog Posts:
Non-Solicitation Agreement Not Violated by Former Employee’s Facebook Posts, Court Rules, The New Jersey Employment Law Firm Blog, April 5, 2013
Employee Social Media Rights Addressed by New Jersey Lawmakers, The New Jersey Employment Law Firm Blog, December 21, 2012
Are New Jersey Employers Allowed to Ask for Access to a Job Applicant’s Facebook Account? The New Jersey Employment Law Firm Blog, March 14, 2012