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.
The law defines “electronic communications device” broadly to include cellphones, computers, PDAs, and similar devices. The term “tracking device,” as defined by A3950, includes both electronic and mechanical devices with the purpose of tracking movement and location. The law omits “devices used for the purpose of documenting employee expense reimbursement” from the definition of “tracking device.”
As originally written, A3950 would have made it a crime of the fourth degree for an employer to use an electronic communications device or tracking device under any circumstance in a vehicle that the employer did not provide to an employee. It would have been the same level of crime to use such a device in a vehicle provided by the employer without obtaining the employee’s consent. The governor issued a conditional veto in early January 2022 and requested that the Legislature change the criminal penalty to a civil one.
The final, re-written version of the law does not make a distinction between company vehicles and vehicles that belong to employees. It also no longer requires an employee’s consent. An employer may not use tracking technology without notifying employees in advance. Instead of criminal prosecution, employers who violate this law face civil penalties payable to the Department of Labor and Workforce Development. A first violation carries a fine of $1,000, followed by $2,500 for each subsequent violation. The law does not provide employees with a private cause of action.
The Resnick Law Group’s employment lawyers advocate for the rights of workers in New Jersey and New York, representing them in claims for violations of state and federal law. To schedule a confidential consultation to discuss your case, please contact us today online, at 973-781-1204, or at 646-867-7997.