On August 29, 2013, New Jersey became the twelfth state to enact legislation prohibiting employers from conditioning employment on access to an employee's personal social media account. The new law takes effect on December 1, 2013.

Under the law, an employer may not require or request any employee or prospective employee to disclose the user name, password or any other information that provides access to a personal social media account, such as Facebook or Twitter. The new law prohibits employers from retaliating or discriminating against an individual who has, or was about to, engage in any of the following activities:

  • Refusing to provide access to his personal social media account.

  • Reporting an alleged violation of this Act to the Commissioner of Labor and Workforce Development.

  • Participating in any investigation, proceeding or action concerning a violation of the Act.

  • Otherwise opposing a violation of the Act.

An employee/applicant can file a civil action in a court within one year of the date of the alleged violation. Available remedies include injunctive relief, compensatory and consequential damages, reasonable attorneys’ fees and costs and civil penalties of $1,000 to $2,500.

The Act does not apply to:

  1. an employer’s effort to insure compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based on the receipt of specific information about activity on a personal account by an employee (like investigations of sexual harassment complaints);

  2. any social media account created, maintained, used or accessed for business purposes or business related communications of the employer (like LinkedIn);

  3. information that can be obtained in the public domain.

In these limited situations, it may still be appropriate for an employer to ask for and receive the password to a social media site.

Other states that have laws prohibiting private employers from asking for access to personal social media accounts are Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah and Washington.

Obermayer attorneys are available to answer your questions about the implications of this Act and your policies and practices.

 

The information contained in this article should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

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