Reed Smith Client Alert

Evidently reacting to a number of valid concerns regarding the legislature’s proposed Social Networking Privacy law (A-2878), New Jersey Governor Chris Christie issued a conditional veto of the legislation May 6, 2013. His conditional veto aims to strike language from the bill that many criticized would make New Jersey’s legislation the harshest in the country and would risk an increase of frivolous lawsuits against private employers. The revised bill – in the form approved by the Governor – is intended to better balance employee and job candidate privacy concerns with the legitimate business interests of employers.

Finding the bill in its proposed form to be “well intended but overbroad,” the Governor noted that worker privacy interests have to be appropriately weighed against employers’ needs to hire the right individuals, protect their confidential and proprietary business information, and manage their businesses. According to the Governor, provisions included in the proposed legislation – such as restrictions prohibiting an employer from even asking whether an employee or job candidate has a social media account – would preclude employers from making legitimate, business-related inquiries into technological skills and media savvy, even when completely relevant to a job role, without risking protracted litigation and potential awards of compensatory damages, injunctive relief, shifting attorneys’ fees, and civil penalties.

While commending the bill sponsors for their “earnest efforts” to protect employees and job candidates against “overly aggressive invasions by employers,” the Governor narrowed the bill’s provisions that he described as “paint[ing] with too broad of a brush.”

If passed by the legislature in the Governor’s modified form, employers would still be prohibited from requiring or requesting the disclosure of private social networking user names, passwords and related information from current or prospective employees. However, employers would not be restricted – as the legislature’s version of the bill had proposed – from inquiring whether any individual simply has a personal social networking account and from accessing and utilizing any social networking information openly available in the public domain. Further, employers would retain the right to investigate compliance with applicable laws, regulations and “work-related employee misconduct” when they receive information related to social accounts, and to probe employees’ online actions with respect to their confidential and proprietary business information or financial data. And, most notably, the private cause of action and potential monetary and other awards for employees included in the proposed bill would be replaced by investigation processes within the New Jersey Department of Labor & Workforce Development and the Commissioner’s authority to assess civil penalties of $1,000 for each first violation, and $2,500 for subsequent violations.


Client Alert 2013-126