New Jersey is ready to have the harshest law aimed at preventing employers from delving into the social media postings of employees. In what is considered lightning speed for New Jersey legislative action, the New Jersey Assembly fast-tracked a bill in May that was approved in June by the Assembly 76-1 and by the Senate in October by a 38-0 margin. The bill – A2878– is now poised for signature by Governor Christie by the end of the year.
If it is signed by the Governor, it will be the toughest of the similar laws on the books in Maryland, California and Illinois. All of these laws are aimed primarily at prohibiting employers from asking for social media passwords. If enacted, New Jersey’s law would also preclude employers from asking if an employee or prospective employee even has a social media account. And, any agreement to waive this protection would be deemed void pursuant to the law. There are also civil penalties for any violation with the penalties beginning at $1,000 for an initial violation and increasing to $2,500 for each additional violation.
The New Jersey law would obviously generate issues for an employer who is looking to comply while still ensuring a secure work environment for its employees. To that end, the new law would not bar company policies curtailing the use of employer-issued electronic communications devices during work hours. Not surprisingly, it is the blurring of private vs. public social media usage which portends to be a major driver of any future civil litigation. What may end up being the most important factor regarding how much litigation this new law would create, however, is the fact reasonable attorney fees may also be recoverable under the statute. Without the financial incentive of a class action or statutory fees, there would be few attorneys willing to bring actions based on $1,000 violations.
UPDATE – February 21, 2013
The bill has still not been signed into law — so much for being fast tracked! Rather than agree to several Senate changes to the bill and then pass along to the Governor for signature, the Assembly has chosen to sit on the bill. A good discussion regarding the latest status of this proposed law can be found in Law360.
UPDATE – March 25, 2013
On March 21, 2013, the bill passed the Assembly by a whopping 75 – 2 vote and is now on the Governor’s desk.
UPDATE – May 7, 2013
On May 6, 2013, Governor Christie conditionally vetoed the bill. In his statement, he suggested that the bill would have been over broad in reach and gave the following example of an unintended consequence of such breadth:
[U]nder this bill, an employer interviewing a candidate for a marketing job would be prohibited from asking about the candidate’s use of social networking so as to gauge the candidate’s technological skills and media savvy. Such a relevant and innocuous inquiry would, under this bill, subject an employer to protracted litigation.
The Governor also vetoed that part of the bill that would have allowed for a private right of action. He felt any dispute was better resolved by the state labor commissioner. According to the bill’s sponsor, the Assembly will likely adopt Governor Christie’s suggestions in order to have the bill signed into law. In effect, the most controversial aspect of the bill was just removed. While some New Jersey businesses may be breathing a sigh of relief, the plaintiff’s bar is certainly no longer excited about this bill.