On August 28, 2013, New Jersey Governor Chris Christie signed into law a statute, Pub. L. 2013, ch. 155, prohibiting employers in New Jersey from requiring or requesting that employees or applicants for employment provide or disclose any user name or password for their social media accounts, such as Facebook or Twitter accounts.
The new statutory provision takes effect on January 1, 2014.
- Refuse to provide or disclose any user name or password to a social media account;
- Report a violation of the new statute to the New Jersey Department of Labor and Workforce Development (“the New Jersey Department of Labor”);
- Testify, assist, or participate in any investigation, proceeding, or action concerning a violation of the new law; or
- Otherwise oppose a violation of the new statute.
So, for example, the new law bans employers in the Garden State from firing or refusing to hire an individual because the individual has declined to give the employer his or her user name or password to a social networking website.
The New Jersey Department of Labor is authorized to prosecute summary proceedings against employers which violate the new law. An employer which is found to have violated the new statute must pay a civil penalty of not more than $1,000 for the first violation and $2,500 for each subsequent violation.
Unlike an earlier version of the same Assembly Bill, the new law does not create a private cause of action by a worker against an employer for violating the new law. Governor Christie conditionally vetoed the Bill’s earlier version in May 2013.
The new statute applies to all employers in the private sector in New Jersey regardless of the number of persons they employ. Further, the new law applies to governmental employers in New Jersey, with the exceptions of the State Department of Corrections, the State Parole Board, county corrections departments, and any State or local law enforcement agency.
Among other exceptions, the new legislation permits a business in New Jersey, in accordance with a uniform policy of the business, to require or request that employees provide or disclose any user name or password for social media accounts that the employee “uses for business purposes.” So, too, the new law allows a company to demand or ask that employees give or disclose any user name or password for “an employer issued electronic communications device,” such as BlackBerries. Further, the new statute does not prevent employers from viewing, accessing, or utilizing information about an employee or job candidate that is accessible to the public.
New Jersey is the thirteenth State to enact legislation that prohibits employers in the private sector from requiring or requesting that employees provide or disclose user names or passwords for their social media accounts. New Jersey joins Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah, Vermont, and Washington in this regard.
Despite the new law, and with certain exceptions, it remains lawful in New Jersey for an employer to terminate or to refuse to hire a person because of information contained in the person’s social media accounts. The new statute merely restricts the means by which an employer may obtain the information set forth in the worker’s or job candidate’s social media accounts.
The reason that, regardless of the new statute, businesses in New Jersey retain broad authority to discharge or refuse to hire an individual because of his or her password-protected profiles on social networking websites is that, with certain exceptions, a business in New Jersey may discharge or refuse to hire an individual because of his or her lawful, off-the-job, political or recreational activities.