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New Jersey Passes Social Media Privacy Bill

By Fernando M. Pinguelo and Guillermo C. Artiles

Everyone enjoys their privacy, even legislators!


Privacy bills are becoming ubiquitous in state legislatures across the country.  With the increased use of social media in and around the workplace, states are legislating to protect the dueling interests of employers and employees.  Ten states, including New Jersey, passed laws that restrict employers from accessing the social media accounts of employees.  Another thirty-six states have introduced similar bills and are awaiting votes.  States are weighing the privacy concerns of employees against concerns of employers who seek to properly vet job applicants and protect confidential company information.


Most recently, New Jersey’s Governor Chris Christie enacted a privacy bill (A2878/S1915) that went into effect on December 1.  The law prohibits employers from asking employees to provide passwords to social media accounts.  At first glance, the law seems very favorable to employees.  But employer protections are strongly woven into the legislation as well.  For example, employers can require employees to disclose social media passwords of social media accounts created by, or maintained for the benefit of, the employer.  Also, the law does not provide employees with a private course of action against an employer who unlawfully intrudes.  The law allows only for the New Jersey Department of Labor to levy fines for any violation—$1,000 for the first violation; $2,500 for each subsequent violation.  Employers also remain free to peruse the social media sites of their employees and job applicants.  Notably, all the employee protections become moot if the employer finds that the employee engaged in misconduct, illegal activity, or unauthorized use of proprietary company information.  If specific evidence of wrongdoing is articulated by the employer, the employer is free to request access information for the employee’s social media accounts.


Arkansas, Colorado, Illinois, Nevada, New Mexico, Oregon, Utah, Vermont and Washington have similar privacy laws, with some variation.  In Oregon, for example, employers also cannot require employees to add the employer to the employee’s social media contact list.  Oregon also prohibits employers from retaliating against employees who refuse to provide access information to accounts or add their employer to personal contact lists.  In Utah, employees are given a private course of action against unlawful employers.  In Colorado, the Privacy in the School Setting Act, addresses only schools, not private employers.  Schools cannot require a student or prospective student to provide access to social media accounts.


Legislators and governors are surely acting, but many questions remain unanswered in this evolving area of law.  These questions will continue to multiply with the growth of social media.  Employers and employees find themselves in a unique place: at the dicey intersection of what is to be considered private or public, or private in the public domain (social media), or public in the private domain (company information).  Lawyers will have plenty to litigate as long as these questions remain unanswered.


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