Author: Beth P. Zoller, XpertHR Legal Editor

New Jersey has joined states like California, Illinois and Maryland in seeking to protect privacy regarding social media in the workplace. The New Jersey Senate has passed a bill which would prohibit employers from requiring employees to provide personal username and passwords and any other means for accessing an individual's account to social networking websites such as Facebook, Twitter and LinkedIn. 2012 Bill Text NJ A.B. 2878; 2012 Bill Tracking NJ A.B. 2878.

Specifically, the bill prohibits an employer from:

  • Requiring a current or prospective employee to provide or disclose any username or password, or in any way provide the employer access to, a personal account or service through an electronic communications device; or
  • Inquiring in any way as to whether a current or prospective employee has a personal account or profile on a social networking website.

Under the proposed law, any agreement to waive a right or protection under the act is against public policy, and will be void and unenforceable. The proposed law also provides that an employer cannot retaliate or discriminate against an individual because the individual has refused to provide or disclose any username or password, or in any way provide access to, a personal account or service through an electronic communications device; filed a complaint pursuant to this act, participated in an investigation or proceeding regarding this act; or opposed a violation of the act.

The law also proposes that an employer will be subject to civil penalties for violations collectible by the Commissioner of Labor and Workforce Development. For a first violation, the penalty is $1000. For the second, the penalty is $2500. The law permits current and prospective employees to institute a civil action within one year of the violation and provides that a court may award the current or prospective employees with injunctive relief, compensatory and consequential damages, reasonable attorneys' fees and court costs.

The bill now moves on to the Assembly for concurrence and then to Governor Chris Christie for signature. Should it pass, New Jersey employers should be prepared to update and revise their workplace policies and practices accordingly. Employers will need to immediately revisit their social media policy as well as their hiring practices in order to avoid liability under this new law.

Additional Resources

Legislatures Aim to Protect Social Media Privacy of Employees and Applicants

Employee Management > Employee Privacy: New Jersey

New Social Media Password Laws Put Employers on Guard (podcast)