Gov. Chris Christie recently issued a conditional veto on proposed legislation that would restrict how employers regulate employees’ use of social media. The Governor characterized the law as overbroad, and he offered recommended changes that would make the law less burdensome for employers.
As we previously discussed on this Business Law Blog, A-2878 would prohibit employers from requiring a prospective employee to provide their user name, password, or other information needed to access social networking sites like Twitter and Facebook. Under the proposed law, employers, who violate the law, would face civil penalties of $1,000 for the first offense and $2,500 for repeat violations.
While Gov. Christie acknowledged the privacy concerns of job candidates and employees, he stated that their rights must be balanced with an employer’s need to hire appropriate personnel, manage its operations and safeguard its business assets and proprietary information. His conditional veto message echoed the concerns raised by the business community that the bill “paints with too broad a brush.”
To more properly balance the needs of employers and applicants/employees, Gov. Christie made several suggested changes. Most notably, the Governor’s version would eliminate the private cause of action for employees. Rather, the law would be enforced solely through the Commissioner of Labor and Workforce Development, which would impose monetary fines for violations.
Gov. Christie’s version would still prohibit employers from requesting social media passwords from job applicants, but it would not ban asking about the existence of such accounts altogether. As noted in Gov. Christie’s veto message, an employer interviewing a candidate for a marketing job should be allowed to ask about the applicant’s use of social networking so as to gauge his or her technological skills and media savvy.
In another recommended change, employers would be able to inquire into an employee’s social media activities to investigate work-related misconduct, including the transfer of proprietary information to an employee’s personal account. Employers would also not be prohibited from accessing an employee's or applicant's social media pages to the extent that they are publicly available.
If you have any questions regarding social media in the workplace or would like to discuss your company’s policies, please contact me or the Scarinci Hollenbeck attorney with whom you work