By Donna D. Page and Mary Cate Gordon
New Jersey is now among a growing number of states with social media privacy laws to protect personal social media accounts of current employees and applicants. On August 29, 2013, Governor Chris Christie signed a bill that prevents employers from requiring job applicants and current employees to disclose their login information for their personal social media accounts or otherwise provide access to their accounts. The law took effect on December 1.
The law seeks to protect personal information of employees on social media sites such as Facebook and Twitter. One of the bill's sponsors compared coercive requests to turn over social media login credentials to asking someone to turn over a key to their house.
The new law is limited to personal social media accounts and does not apply to accounts used for business purposes. Additionally, the law explicitly provides that an employer may access an employee’s or applicant’s social media pages to the extent that they are available to the public. The law renders void any agreement by an employee or applicant to waive the privacy protections and contains an anti-retaliation provision.
An important exception to the law allows employers to investigate “work-related employee misconduct” and other legal violations based on the receipt of “specific information” about activity on an employee’s account. Indeed, both New Jersey and federal law obligates employers to investigate certain allegations of wrongdoing, including reports of discriminatory harassment occurring through social media sites.
Employers, however, should exercise caution and consult with counsel before requesting access to or otherwise accessing any employee’s social media account, as such investigatory conduct may violate federal privacy laws if done improperly. For example, a federal district court in New Jersey recently held that non-public Facebook posts are covered by the Stored Communications Act (SCA).
The social media privacy law signed by Governor Christie is a scaled-back version of the original bill, which he conditionally vetoed last May. The previous version would have allowed individuals to initiate private civil actions to enforce their rights. As enacted, the statute does not provide the right to a private cause of action, but allows aggrieved individuals to report violations to the Commissioner of the New Jersey Department of Labor and Workforce Development. An employer that violates the law is subject to civil fines.
Ballard Spahr’s Labor and Employment Group routinely assists employers in social media compliance. If you have questions or concerns regarding social media in the employment context, please contact Donna D. Page at 856.673.3803 or email@example.com, Mary Cate Gordon at 856.761.3464 or firstname.lastname@example.org, or the lawyer in Ballard Spahr's Labor and Employment Group with whom you work.
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