By Francis M. Smith
The New Jersey Assembly has recently approved legislation that would protect the privacy of employees and job seekers from employers seeking details about their social media activity. In recent years, many companies have attempted to require employees and job candidates to provide the user names and passwords to their Facebook, Twitter, and other social media accounts, or to log in on a company computer and allow the employer to view their account. In other cases, employers have required workers to "friend" a supervisor or a company account, giving this account access to seeing all the information that the employee posts. Employees who refuse may face disciplinary action, and job seekers often feel compelled to provide their login details because refusal may cost them the job they were applying for.
In response to this trend, many states have passed, or are considering, legislation to curtail this practice and protect the rights of employees and job seekers to privacy on their social media platforms. Currently, California, Illinois, Maryland, and Michigan have passed laws barring employers from requiring that their employees or job seekers provide access to social media accounts as a condition of employment, and numerous others have introduced legislation to this effect. The recent piece of legislation approved by the New Jersey Assembly would join these similar laws, holding companies that force job applicants or employees to disclose their login details liable for civil penalties up to $1,000 for the first offense, and $2,500 for each subsequent violation. The Department of Labor and Workforce Development would respond to reports of violations and take appropriate action.
The recent legislation is a weaker version of the original social media privacy bill passed by both houses with broad support from both Democrats and Republicans. Governor Christie conditionally vetoed the original version of the bill, expressing concerns that the provisions were too far-reaching and could have unintended effects, making companies vulnerable to costly litigation in response to an "innocuous inquiry."
Two provisions were removed from the bill at Governor Christie's suggestion. The changes included removing language that gave workers whose social media privacy had been violated the right to file civil actions for injunctive relief, attorney fees, and compensatory and consequential damages. Also removed from the bill was a provision that forbade employers from asking about or requiring that employees and job seekers disclose whether they have a personal account on social media platforms like Twitter and Facebook. Governor Christie expressed concerns that this latter provision prevented businesses from asking relevant questions about a job candidate's technological skills and media expertise.
The revised legislation incorporating Governor Christie's recommended modifications also specifies particular rights that employers have with regard to the social media accounts of their employees and prospective employees. It stipulates that employers have the power to investigate possible violations of laws, regulations, or work-related misconduct on the part of employees if they have received specific information regarding an employee's social media account. The employer also has the right to investigate the actions of their employees on social media platforms in cases where financial data or proprietary or confidential information may have been compromised. Also, employers have the power to use and access any information in the public domain regarding their employees and job applicants. This includes any information that can be found using a Google search or other web search that does not require a password or login details in order to access, as well as any information available in traditional media.
Despite the limitations of the revised bill, the legislation does offer employees some recourse in the face of employer misconduct and inappropriate pressure to reveal social media account details. Employers and job seekers who feel that they have been illegally asked to provide these details should report the incident to the Department of Labor and Workforce Development, and have on hand any documentation available about the incident, including the date and the names of the people involved. Although the revised legislation removes the power of employees and job seekers to file civil suit against employers who violate this measure, the advice of an attorney may still be valuable in understanding how to proceed with your claim and what evidence you need in order to hold the company properly accountable for their actions.
In general, it is advisable to be very careful with the information you choose to share on social media sites. When possible, avoid using your real name or identifying details, and minimize the amount of information on your profile or account that is publicly available; information that anyone can see is public domain, and employers have a right to view it and potentially use it against you. Publicly available personal information also makes it easier for employers to discriminate against employees and job seekers, even on the basis of protected classes.
When injured be careful what you say online. When in need of counsel regarding serious injuries, contact Francis M. Smith, Esq. Mr. Smith has over 30 years of experience negotiating fair, efficient recoveries for clients who have suffered from motor vehicle accidents, slip and fall accidents, and workplace-related accidents. Call for a free consultation at (908) 233-5800, by email, or online.