On March 21, 2013, a broadly-worded social media privacy bill (A2878) received final legislative approval, and now awaits action by Governor Chris Christie. As discussed in several prior issues, this bill would bar an employer from requiring or requesting that any current or prospective employee:
- disclose his or her username or password to a personal social media account;
- provide access to his or her personal social media account;
- disclose whether he or she has a personal social media account; or
- waive the rights or protections of the bill.
Under the bill, a protected “personal” social media account is one used by an applicant or employee exclusively for personal communications. Based on this definition, a social media account an applicant or employee uses for both personal and business-related purposes likely falls outside the protections of the bill. How an employer may navigate that distinction in a given situation, however, is not entirely clear.
The bill also broadly provides that it should not be construed to prevent employers from complying with the requirements of state or federal law—potentially allowing, for example, an employer to require an employee to provide access to a personal social media account in connection with an investigation of unlawful workplace harassment. Further, the bill does not prohibit employers from implementing and enforcing policies concerning the use of employer-issued electronic communications devices. The extent to which employers may implement policies concerning the use of personal devices—including devices under a bring your own device (BYOD) policy—is not clear.
Finally, the bill would also prohibit retaliation or discrimination against individuals who refuse to divulge their usernames or passwords or provide access to their personal accounts, who object to violations of the law, or who file a complaint under the Act. In addition to a civil penalty of $1,000 to $2,500, the bill would also provide aggrieved individuals with a civil cause of action, enabling them to seek injunctive relief, compensatory and consequential damages, and attorneys’ fees and costs.
