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The Snooping Employer: New Jersey Legislature Presses For Limits On Employer Access To Employee Social Media Accounts

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

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Township Found Not Liable For Injuries Caused By Intersectional Accident For Allegedly Failing To Maintain Hedges On Private Property

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

By: Betsy G. Ramos, Esq.

In Lessa v. Township of Pemberton, an unpublished decision, just decided by the Appellate Division on June 19, 2013, the Township was found to be immune under the Tort Claims Act for an intersection accident caused by a sight obstruction due to hedges on the corner. The plaintiff, an 11 year old bicyclist, was struck by a motor vehicle at an uncontrolled intersection in the town.

The plaintiff claimed that the township should be liable for failing to address the emergent conditions existing at the intersection and in failing to address the dangerous condition caused by the hedges. Under the Tort Claims Act, a municipality can be liable for a dangerous condition on property it owned or controlled.

Although it was undisputed that the hedges were on private property, the plaintiff argued that the  Township “controlled” the hedges. Some time after the accident, the Township’s public works department trimmed the hedges.

The Appellate Division found, however, that the Township exercised its legitimate police power to enter into the property to trim the shrubs in light of the homeowner’s failure to do so. This action did not transform this private property into property “owned or controlled” by the Township. Other than trimming the bushes, there is no evidence that the Township ever used the property for public purposes.

The plaintiff also argued that the Township should be liable for its failure to place a traffic control device at that intersection due to the “emergent” condition existing there. The plaintiff contended that the Township had received complaints about that intersection and that it knew or should have known that the shrubs were an obstruction.

However, under the Tort Claims Act, while there is no immunity for a failure to provide for “emergency” situations, there is immunity for failure to post an “ordinary” traffic control device. Here, the Court found that the shrubs and the lack of a traffic control device were not extraordinary conditions, but were “rather commonplace in driving experience.” The Court noted that it would be readily apparent to a motorist exercising a reasonable degree of care that overgrown shrubs obscured your view and that one should be alert to the movement of others at this uncontrolled intersection.

Accordingly, the Appellate Division affirmed the trial court’s order granting the Township summary judgment.

This case could be useful in defending situations in which the public entity has made a subsequent repair to a private property. It may also be helpful in defending intersectional accidents where the claim is the failure to install a traffic control device.

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Governor Christie Signs Law Providing Special Benefits To Spouses Of Deceased Police And Fire Fighters

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

By: John H. Geaney, Esq.

In a piece of special legislation, Governor Christopher Christie signed into law Senate, No. 1469, on June 13, 2013.  The bill pertains to dependency benefits for surviving spouses of certain fire and police personnel who die in the line of duty.

Under current law in New Jersey, surviving spouses are entitled to dependency benefits of 70% of wages but such benefits end on remarriage.  In the event that remarriage occurs during the first 450 week period, the spouse is entitled to receive the remainder of the compensation which would have been due the spouse had the spouse not remarried, or 100 times the amount of weekly compensation paid immediately preceding the remarriage, whichever is the lesser.

The new law treats a surviving spouse of a deceased member of the State Police or member of a fire or police department or force differently than all other surviving spouses in New Jersey.  For example, under existing law a surviving spouse of an employee who earned $1,200 per week and died in 2013 in the course of employment would receive the maximum rate of $826 per week.  If the spouse remarried during the first 450 weeks, for example at week 300, the spouse would receive 100 times that rate or $82,600 as the final payment.  Benefits would then terminate on account of remarriage.

The new legislation exempts surviving spouses of state police, fire fighters and police officers from the so-called “remarriage penalty.”  In the example above, the surviving spouse would continue to receive $826 per week for life whether or not she or he remarried.  Dependency benefits would only end at death of the surviving spouse for spouses of state police, police and fire fighters.

The law is not retroactive for those surviving spouses who already received a lump sum payment or remarried prior to the effective date of this legislation.

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Capehart Scatchard Attorney Addresses NJ ICLE

Mt. Laurel, NJ – – Capehart Scatchard Shareholder Amy C. Goldstein, Esq. recently spoke at a New Jersey Institute for Continuing Legal Education seminar on “Understanding Parental Alienation in Divorce: An Essential Guide for Family Law Attorneys and Judges” in Mount Laurel, New Jersey. Ms. Goldstein’s presentation covered the legal aspects of parental alienation in custody and parenting time cases.

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Controversial First Responder Bill Would Create Various Presumptions Favoring Compensability

The New Jersey Assembly is considering a bill which would create presumptions that cancers and other medical conditions experienced by public safety workers are work related. New Jersey already has laws creating presumptions in favor of compensability for firefighters and certain public safety workers in regard to respiratory conditions, heart attacks and strokes. The new bill under Assembly, No. 1196, would create an entirely new category of presumptions. Costs for employers and taxpayers could be tens of millions, if not hundreds of millions, of dollars over time.

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