Employee Privacy: New Jersey
Federal law and guidance on this subject should be reviewed together with this section.
Author: Stacey D. Adams, Alison B. Andolena, Littler
- New Jersey law imposes certain obligations on employers with regard to the privacy interests of job applicants, including limits with regard to criminal background checks, reference checks and obtaining credit reports. See Applicant and Interview Inquiries.
- Employees are subject to several limits under New Jersey law with regard to testing current employees. See Monitoring Current Employees.
- New Jersey Courts have placed certain limits and obligations on employers who monitor employee email accounts. See Employee Email.
- The New Jersey Identity Theft Prevention Act imposes requirements on employers concerning the maintenance and destruction of records containing personal information. See Personal Information and Social Security Numbers.
- New Jersey law protects the privacy of employees' and applicants' social networking accounts. See Social Media Privacy.
Applicant and Interview Inquiries
Criminal Background Checks
Employers may obtain criminal history records as long as the employer obtains an authorization signed by the applicant and provide a certification completed by the employer stating, among other things, that "[t]he records shall be used by the employer solely for the purpose of determining the applicant's qualifications for employment." +N.J.A.C. 13:59-1.2.
Criminal history records may contain both arrest and conviction information.
If an employer intends to use information obtained to disqualify an applicant, the employer must provide the employee with notice and allow the employee an opportunity to confirm or deny the accuracy of the information, as well as correct or complete the information, before they render rendering a final decision. +N.J.A.C. 1.6(a).
Employers must presume applicants innocent of any pending charges. +N.J.A.C. 1.6(a).
According to the New Jersey Division on Civil Rights, Guide of Preemployment Inquiries, hiring or other employment-related decisions should not be based upon arrests or convictions that have been expunged or sealed by the court, but it is permissible to consider convictions which bear a relationship to the job.
Ban the Box Law
New Jersey's Opportunity to Compete Act prohibits employers with 15 or more employees over 20 calendar weeks from making any oral or written inquiry about an applicant's criminal record during the initial employment application process. The Act defines this process as beginning when an applicant first inquires about a job vacancy and ending when an employer has conducted a first interview. +N.J. Stat. § 34:6B-14.
In addition, this law bans covered employers from publishing a job advertisement stating that the employer will not consider applicants who have been arrested or convicted of one or more crimes. The Act is known as a "ban the box" law in reference to eliminating the box on job applications that prospective employees often are asked to check off if they ever have been convicted of a crime.
The Act also applies to employment agencies. Limited exemptions are provided for positions in law enforcement, corrections, the judiciary or emergency management.
Employers found to have violated the Act will be subject to the following penalties:
- Up to $1,000 for the first violation;
- $5,000 for the second violation; and
- $10,000 for each subsequent violation.
However, the Act does not provide aggrieved applicants with the right to file a lawsuit. It also preempts any city or county criminal history ordinance regulating private employers, adopted prior to March 1, 2015, that conflicts in any way with the state law. +N.J. Stat. § 34:6B-17.
New Jersey expanded its "ban the box" law to prohibit employers from making any inquiries, either oral or written, about a job applicant's expunged criminal record during the initial job application process. The ban also covers online job applications that require the disclosure of an applicant's criminal record, including an expunged record. +2016 Bill Text NJ S.B. 3306; Preemployment Screening and Testing: New Jersey
As with other convictions, if an applicant voluntarily and without prompting discloses any information regarding his or her expunged criminal record during the initial application process, an employer may then ask about that record.
Drug Testing of Prospective Employees
Employers may use reasonable means to test prospective employees for illegal drug use and may make employment decisions based upon the results of such tests. See Vargo v. Nat'l Exch. Carriers Ass'n, Inc., +376 N.J. Super. 364 (App. Div. 2005).
The tests used must be reasonable in both scope and design.
References and Reference Checks
Employers should refrain from contacting references other than those identified and consented to by the applicant to avoid claims of invasion of privacy due to a lack of notice or consent. See Hennessy v. Coastal Eagle Point Oil Co., +129 N.J. 81 (1992).
When providing references, employers are cautioned to provide only a neutral reference, confirming dates of employment and positions held to avoid claims of defamation, negligent misrepresentation or tortious interference with prospective economic advantage.
Employers may request credit reports for prospective employees. The New Jersey Fair Credit Reporting Act, +N.J. Stat. § 56:11-28, requires:
- The employer to provide a prospective or current employee with a copy of the report and a notice of his or her rights under New Jersey and federal law before taking an adverse action. +N.J. Stat. § 56:11-31(e); and
- That if an investigative consumer report is sought the disclosure must identify the precise nature and scope of the investigation and inform the individual of his or her right to obtain a copy of the report. +N.J. Stat. § 56:11-33(a).
Monitoring Current Employees
The New Jersey Code of Criminal Justice, like the Employee Polygraph Protection Act, generally prohibits the use of polygraph tests both prior to or during employment. +N.J. Stat. § 2C:40A-1.
A person commits a disorderly persons offense by influencing, requesting, or requiring "an employee or prospective employee to take or submit to a lie detector test as a condition of employment or continued employment."
The New Jersey Law Against Discrimination (NJLAD or LAD) prohibits employers from taking employment actions based on the "refusal to submit to a genetic test or make available the results of a genetic test to an employer." +N.J. Stat. § 10:5-12(a).
Drug Testing of Current Employees
The LAD protects rehabilitated drug users. It does not, however, protect current abusers. See Bosshard v. Hackensack Univ. Med. Ctr., +345 N.J. Super. 78 (App. Div. 2001).
Random drug testing of current employees is not permitted unless the public interest outweighs the employee's right to privacy when dealing with a safety-sensitive position. See Hennessey v. Coastal Eagle Point Oil Co., +129 N.J. 81 (1992).
Even for employees in safety-sensitive positions, employers should implement procedures allowing for "as much privacy and dignity as possible"; provide notice of the program, its details, and the consequences of positive tests or refusals; conduct "only those tests necessary to determine the presence of drugs in the urine"; and may not disclose any information obtained.
Similar to federal law, employers may also conduct drug tests where they have reasonable suspicion that the employee is under the influence of drugs or alcohol while working.
Employee Personal Mail
The Third Circuit has recognized a cause of action for intrusion upon seclusion if an employer opens an employee's mail that has been marked personal without the employee's consent. See Vernars v. Young, +539 F.2d 966 (3d Cir. 1976).
Employers should notify employees of policies that provide for mail to be routinely opened in order to diminish employee expectations of privacy.
The New Jersey Wiretapping and Electronic Surveillance Control Act prohibits the interception of a wire, electronic or oral communication, and the disclosure or use of the contents of an interception or evidence derived from it. +N.J. Stat. § 2A:156A-3.
The statute makes an exception if the person intercepting is a party to the communication or if one party has given prior consent. +N.J. Stat. § 2A:156A-4.
It also contains a business extension exception that allows employers to monitor employee conversations provided that:
- The service provider or subscriber furnished the intercepting equipment; and
- The employee used the equipment in the ordinary course of business. +N.J. Stat. § 2A:156A-2(d) (1).
Like federal law, New Jersey law permits employers to review employee emails. Employers should implement electronic resource use policies to reduce employee expectations of privacy to the extent permitted.
Employers should be mindful that monitoring employee email and computer usage imposes a duty upon employers to prevent employees from intentionally harming others or from engaging in activities deemed to be a threat or an unreasonable risk of harm to others. See, Doe v. XYZ Corp., +382 N.J. Super. 122 (App. Div. 2005) (employer has duty to report child pornography).
The New Jersey Supreme Court recognizes a difference between emails sent on a workplace computer using the employer's email account versus emails sent through the employee's personal email account.
The employee may retain a privacy interest in the latter, even if sent and received on a workplace computer, and an employer should exercise caution when reading such emails, even if the employer has a clear policy stating that anything on a workplace computer may be accessed. See Stengart v. Loving Care Agency, +201 N.J. 300 (2010).
Personal Information and Social Security Numbers
The New Jersey Identity Theft Prevention Act (the Act) provides that public and private entities may not:
- Publicly post or display an individual's Social Security Number (SSN), or four or more consecutive numbers of it;
- Print an individual's SSN on any materials that are mailed to the individual, unless otherwise required by law;
- Print an individual's SSN on any card required for access to the entity's products or services;
- Intentionally communicate or make available an individual's SSN to the general public;
- Require an individual to transmit his SSN over the Internet, unless the connection is secure or the SSN encrypted; or
- Require an individual to use his SSN to access an Internet web site, unless a password or unique personal identification number or other authentication device is also required to access the Internet web site.
Employers may use SSNs for internal verification and administrative purposes as long as the use does not require the release to unauthorized individuals. +N.J. Stat. § 56:8-164(b).
Employers may use SSNs on applications and forms that are sent by mail "including documents sent as part of an application or enrollment process, or to establish, amend or terminate an account, contract or policy, or to confirm the accuracy of the Social Security number." +N.J. Stat. § 56:8-164(d).
The Act requires the destruction of records that are no longer to be retained by the business or entity that contain the personal information of its employees, which is defined as employee's name plus one of the following: his/her SSN, driver's license number, state identification card number or account number or credit or debit card number, in combination with any code or password required for access. +N.J. Stat. § 56:8-161; +N.J. Stat. § 56:8-162.
Employers that compile or maintain computerized records containing personal information must disclose a breach of security to customers, which includes employees, when information was, or is reasonably believed to have been, accessed by an unauthorized person. +N.J. Stat. § 56:8-163(a).
Under the Jake Honig Compassionate Use Medical Cannabis Act (Act), which amends the Compassionate Use Medical Marijuana Act, qualified registered users with a qualifying medical condition are permitted to use medical cannabis (previously referred to as marijuana under state law). See Disabilities (ADA): New Jersey; Employee Health: New Jersey.
If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer must:
- Offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result; and
- Provide written notice of the right to explain to the employee or job applicant.
Within three working days after receiving notice of the test result, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee's or job applicant's own expense. As part of an employee'a or job applicant's explanation for the positive test result, the employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner, proof of registration with the commission, or both.
The law also contains provisions prohibiting adverse action against an employee who is a registered qualifying patient solely on the employee'a status as a registrant with the Commission See Discrimination: New Jersey. See EEO - Discrimination: New Jersey.
Social Media Privacy
New Jersey's social media privacy law prohibits employers from requiring or requesting employees and job applicants to disclose their user names, passwords and other means of access to their accounts or profiles on social networking websites through electronic communications devices. +N.J. Stat. § 34:6B-5 .
Under the law, electronic communications devices include computers, telephones, personal digital assistants and other similar devices. A personal account is defined as an account, service or profile on a social networking website that is used by an employee or job applicant exclusively for personal communications that are unrelated to the employer's business. It does not include social media accounts or profiles created, maintained, used or accessed by employees or job applicants for the employer's business purposes or to engage in business-related communications.
The law prohibits employers from requiring individuals to waive the protections of the law as a condition of applying for or receiving an offer of employment. It also protects individuals from employer retaliation for failing or refusing to provide such information, reporting an alleged violation of the act to the Commissioner of Labor and Workforce Development, participating in an investigation, proceeding or action regarding a violation of the law, or opposing a violation of the law.
The law does not interfere with an employer's right to conduct investigations to ensure compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based upon the receipt of specific information about an employee's activity on a personal account. An employer may also investigate an employee's actions based upon the receipt of specific information concerning the unauthorized transfer to a personal account of the employer's proprietary, confidential or financial information. The law also does not prevent an employer from viewing, accessing or utilizing information about an employee or job applicant that can be obtained in the public domain. Employers are also permitted to implement and enforce policies regarding the use of employer-provided electronic communications devices or regarding any accounts or services provided by the employer or used for business purposes.
Employers that violate the law are subject to a $1,000 civil penalty for the first violation, and $2,500 for each subsequent violation.
Common Law Privacy Rights
In addition to the areas above, New Jersey courts recognize common law claims for unreasonable intrusions of privacy based on the following torts:
- Intrusion upon seclusion. The intentional intrusion into the private affairs of another that is highly offensive to a reasonable person;
- Misappropriation of another's name or likeness. The use of another's name or likeness without their permission;
- Publicity to another's private life. The unreasonable publicizing of private facts;
- False light. The publicizing of sensitive facts that inaccurately portray the individual knowing or having reckless disregard for their falsity.
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