On March 21, 2013, the New Jersey General Assembly passed a bill (A2878) that prohibits employers from requiring or requesting that employees or job candidates disclose user names and passwords for their social media accounts. The Bill also prohibits employers from inquiring whether these individuals have personal social networking accounts. Any employer who retaliates or discriminates against an applicant or employee based on the refusal to provide access to a social media account or to disclose a user name or a password may face a private cause of action by the job candidate or employee and civil penalties of up to $1,000 for the first instance and up to $2,500 for each additional violation. An aggrieved employee could file suit against an employer for up to a year following the violation and recover attorneys’ fees and costs of suit.
The New Jersey Senate approved a counterpart bill in October 2012. Governor Chris Christie will now consider the bill. If Governor Christie signs the bill into law, New Jersey will be the eighth state to pass legislation preventing employers from asking prospective and current employees for passwords to their accounts on social media site. However, New Jersey’s law would be the first to include language prohibiting employers from asking employees if they even have such accounts. Similar laws have been introduced or are pending in 32 other states, according to the National Conference of State Legislatures.
If this bill passes, it will pose a potential litigation land mine for employers because the protections under this bill may not be waived under any circumstance even if the use of social networking sites such as LinkedIn is part of the employee’s job. The law also would place employers in a difficult position of complying with the law while ensuring a secure work environment for their employees. Employers should consult with experienced legal counsel regarding how it may affect their hiring practices.