Article by Capehart Scatchard

New Jersey Public Entity Law Monthly – Vol. II, Issue 6

By: Ralph R. Smith, 3rd, Esq.

When considering a person for possible hiring, employers no doubt want to acquire as much information as possible about the potential hiree.  This desire to do  comprehensive research on a candidate’s background has led many employers to demand access to that person’s private, password protected social media and other internet web pages as a condition for either employment consideration or for continuation of employment for existing employees.  Citing privacy concerns, lawmakers in several states,  including California and Illinois, have already passed legislation that prohibits such employer inquiries.  In the near future, New Jersey could very well be the next state in line to implement such legal restrictions.

Over the past year, efforts have been underway in the New Jersey Legislature to prohibit employers from demanding information about private password protected social media and other web based sites as part of efforts to conduct due diligence on prospective hirees.  In May, 2013, Governor Christie conditionally vetoed a bill that would have prohibited an employer from requiring a current or prospective employee to disclose his/her user names, passwords, and any other related information about personal social media accounts.  While acknowledging the merits of the bill as an attempt to protect employees from overly invasive inquiries into their private information, the Governor thought the proposed law was overly broad and was especially flawed in allowing, inter alia, for possible civil lawsuits for the bill’s violation.

Accepting the Governor’s recommendation that the bill be revised, the New Jersey Assembly recently passed on May 21, 2013 a modified version of the previously vetoed legislation. In line with the Governor’s suggestions, the new bill no longer authorizes civil lawsuits for its violation but instead empowers the New Jersey Department of Labor to punish employers for violation of the bill’s restrictions.  Such violations would carry civil penalties of up to $1,000.00 for the first offence and $2,500.00 for each subsequent violation.  Substantively, the new Assembly bill is similar in scope to the predecessor vetoed bill.  If passed, the revised bill will prohibit an employer from requiring a current or prospective employee to provide or disclose any user name, password, or other similar means for accessing a personal account or service through an electronics communication device.  The bill would further prohibit an employer from requiring a prospective employee or applicant to waive or agree to limit any of the protections granted under the proposed law as a condition of applying for or receiving an offer of employment.  Finally, the bill if passed would likewise protect any employee who reports its violation from possible wrongful retaliation.

Along with adopting the Governor’s recommended change on how violations of the bill should be addressed, the Assembly bill similarly deletes also at the Governor’s urging provisions of the former bill that would have barred employers from asking current or perspective employees whether they had personal accounts or profiles on social networking websites. Other changes likewise make it clear that employers may view, access, and utilize any information about an employee or prospective employee that can be obtained in the public domain, which in the Governor’s view, was something that the predecessor bill would have wrongly precluded.

Before heading back to the Governor’s desk for possible passage, the revised measure now heads to the New Jersey Senate for its consideration and review.  In its modified form, the Assembly bill certainly stands a good chance of enactment given its adoption of the various suggested revisions purposed by the Governor in his conditional veto of the earlier proposed legislation.  As always, we will continue to track the potential passage of this legislation, and keep you alerted on whether it passes and what it may mean for employers and their pre-employment background check policies and procedures.