Governor Christie signed into law on August 29 a privacy bill that prohibit employers from requiring employees and job applicants to disclose their private social media account information. The law will become effective December 1, 2013. Click here for a related blog entry I wrote on a similar law in Philadelphia.
First off, the law will apply to ALL NEW JERSEY EMPLOYERS regardless of size. Yes that is correct; there is no minimum number of employees for this law to apply. There is a minor exception relating to state and county jails and parole officers but for purposes of this entry, this law applies to ALL NEW JERSEY EMPLOYERS.
Under this law, an employer will not be able to force an applicant or a current employee to disclose any password, user name or other account login information to any social media that is used exclusively for personal communications and is unrelated to a business purpose of the employer. It will be a violation of this law if you even ask a prospective job applicant or current employee if they have a social networking site. However, there is nothing in this law that would prevent an employer from doing his own search to see if the prospective employee has her own social media accounts at Facebook and similar sites.
Like most laws, there are exceptions. In certain limited circumstances, an employer will be allowed to compel an employee to disclose his or her username and password. For example, disclosure may be required for (1) the employer to comply with a state or federal statute; or (2) employer investigations of workplace misconduct or theft of proprietary or confidential information. In each workplace investigation, the employer must be acting on credible and specific information and not be conducting a fishing expedition.
The law has anti-retaliation provisions designed to protect the applicant or employee from adverse actions of an employer who violates this law. If an employer does violate this law it will be fined $1,000 for the first violation and $2,500 for each successive violation. The proceeds will be collected by the Commissioner of Labor.
While this law affects social media at the workplace, please understand that it does not prevent an employer from having a workplace electronic communications policy. In fact, we recommend that you review your current communications policy to ensure compliance with this new law. Doug Leavitt and the attorneys at Danziger Shapiro & Leavitt are available to discuss this and other issues affecting your company. Please feel free to call us for a free initial consultation.
This entry is presented for informational purposes only and is not intended to constitute legal advice