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New Jersey Legislative Update

New Jersey Public Entity Law Monthly – Vol. II, Issue 9

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

This past August, Governor Christie signed two bills into law that create additional restrictions for all employers, private and public, operating in the State of New Jersey.

The first enacted law is a pay equity measure that amended the New Jersey Law Against Discrimination (“NJLAD”). The second law places restrictions on an employer’s right to access personal social media accounts of employees and prospective employees. This latter bill was discussed in an earlier edition of this update after that proposed version of the law was conditionally vetoed by the Governor this past May.

Pay Equity

Assembly Bill No. 2648 is a pay equity protection measure that bars employers from retaliating against employees who share information about their job title, occupational category or rate of compensation and/or other employment matters, or the gender, race or other protected characteristic of current or former co-workers when such inquiries are made to assist in investigating the possibility of unlawful discriminatory treatment in pay, compensation, bonuses, compensation or benefits. The law is designed to enable employees to share information about wages and other terms/conditions of employment as a means of ferreting out on-going discriminatory practices and pay inequities while shielded from possible employer retaliation for such efforts. This new provision of the NJLAD took effect immediately upon its enactment by Governor Christie in August.

Social Media Protections

Assembly BillNo. 2878 prohibits employers from requiring or requesting any employee or perspective employee to provide or disclose their user name or password or, in any way, providing the employer access to a personal account through the use of an electronic communication device. Along with prohibiting employers from retaliating or discriminating against persons who refuse to provide access to a personal social media account, the law also protects persons who participate in any complaint, investigation, proceeding or action concerning a violation of the act or otherwise oppose a violation of the act. Employer violations under the Act are enforced not through a private cause of action (a part of the earlier bill that lead to Governor Christie’s veto) but are instead enforced through the Department of Labor and Workplace Development (“DOL”). Civil penalties for violation of the Act to be imposed by the DOL can range up to a maximum of $1,000.00 for the first violation and $2,500.00 for each additional violation. New Jersey has now become the 9th state this year, and the 12th state overall, to enact legislation prohibiting employers from seeking or accessing a current or perspective employee’s personal social media account information.

While this new law bars employers from seeking private information from password protected social media sites, it expressly allows employers to view, access or utilize information about a current or prospective employee that is ordinarily available in the public domain of the Internet. In addition, the law permits employers to access private personal social media accounts if needed by the employer to investigate compliance with applicable laws, regulations or “prohibitions against – work related employee misconduct,” particularly when the employer receives specific information regarding an employee’s wrongful misappropriation of an employer’s proprietary, confidential or other financial data to a personal account.

So What Should Employers Do?

With these recent changes that place additional restrictions upon employers, it is a good time for employers to assess their current employment policies to insure compliance with these new restrictions. In regards to the new social media access restrictions, employers should specifically review all background check policies to confirm that the employer is not requesting such personal information as part of any background checks done on current or prospective employees. And, finally, employers must insure that any existing workplace pay “inequities” are based upon meritorious grounds and not due to the violation of any equal employment opportunity laws.

This past August, Governor Christie signed two bills into law that create additional restrictions for all employers, private and public, operating in the State of New Jersey.

The first enacted law is a pay equity measure that amended the New Jersey Law Against Discrimination (“NJLAD”). The second law places restrictions on an employer’s right to access personal social media accounts of employees and prospective employees. This latter bill was discussed in an earlier edition of this update after that proposed version of the law was conditionally vetoed by the Governor this past May.

Pay Equity

Assembly Bill No. 2648 is a pay equity protection measure that bars employers from retaliating against employees who share information about their job title, occupational category or rate of compensation and/or other employment matters, or the gender, race or other protected characteristic of current or former co-workers when such inquiries are made to assist in investigating the possibility of unlawful discriminatory treatment in pay, compensation, bonuses, compensation or benefits. The law is designed to enable employees to share information about wages and other terms/conditions of employment as a means of ferreting out on-going discriminatory practices and pay inequities while shielded from possible employer retaliation for such efforts. This new provision of the NJLAD took effect immediately upon its enactment by Governor Christie in August.

Social Media Protections

Assembly BillNo. 2878 prohibits employers from requiring or requesting any employee or perspective employee to provide or disclose their user name or password or, in any way, providing the employer access to a personal account through the use of an electronic communication device. Along with prohibiting employers from retaliating or discriminating against persons who refuse to provide access to a personal social media account, the law also protects persons who participate in any complaint, investigation, proceeding or action concerning a violation of the act or otherwise oppose a violation of the act. Employer violations under the Act are enforced not through a private cause of action (a part of the earlier bill that lead to Governor Christie’s veto) but are instead enforced through the Department of Labor and Workplace Development (“DOL”). Civil penalties for violation of the Act to be imposed by the DOL can range up to a maximum of $1,000.00 for the first violation and $2,500.00 for each additional violation. New Jersey has now become the 9th state this year, and the 12th state overall, to enact legislation prohibiting employers from seeking or accessing a current or perspective employee’s personal social media account information.

While this new law bars employers from seeking private information from password protected social media sites, it expressly allows employers to view, access or utilize information about a current or prospective employee that is ordinarily available in the public domain of the Internet. In addition, the law permits employers to access private personal social media accounts if needed by the employer to investigate compliance with applicable laws, regulations or “prohibitions against – work related employee misconduct,” particularly when the employer receives specific information regarding an employee’s wrongful misappropriation of an employer’s proprietary, confidential or other financial data to a personal account.

So What Should Employers Do?

With these recent changes that place additional restrictions upon employers, it is a good time for employers to assess their current employment policies to insure compliance with these new restrictions. In regards to the new social media access restrictions, employers should specifically review all background check policies to confirm that the employer is not requesting such personal information as part of any background checks done on current or prospective employees. And, finally, employers must insure that any existing workplace pay “inequities” are based upon meritorious grounds and not due to the violation of any equal employment opportunity laws.

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