New bills signed by Governor Chris Christie include important measures for employers relating to social media and pay equity, but many questions remain.
On August 29, New Jersey Governor Chris Christie signed into law two bills that impact employers in New Jersey by (1) limiting access to employees' social media accounts and (2) protecting employees who seek information regarding potential pay inequality.
New Social Media Protections
Assembly Bill A2878/S1915
The enactment of Assembly Bill A2878/S1915, makes New Jersey the latest state to limit employers' ability to obtain access to the social media accounts of their current or prospective employees. The law prohibits employers from requesting that an applicant or employee provide access to any personal account on a social media website, such as Facebook, LinkedIn, or Twitter. Employers are also prohibited from retaliating or discriminating against any individual who refuses to provide such access or who reports an alleged violation of the law.
The final version of the legislation, which will become effective on December 1, 2013, is significantly more employer friendly than the bill approved by the New Jersey Legislature in March. Responding to criticism by business groups, Governor Christie conditionally vetoed the original proposal, suggesting that the bill was well intentioned but "paint[ed] with too broad a brush." In response to the governor's veto, the bill's proponents significantly revised the proposal to include the following key protections for employers:
The law applies only to exclusively personal social media accounts and not those related to the business of the employer or utilized for business-related communications. Social media accounts created for or maintained on behalf of an employer or utilized for business purposes are not protected by the statute.
The law does not prohibit employers from asking applicants or employees if they have a social media account or from reviewing any public social media content.
The legislation does not create a private right of action to enforce its provisions. Instead, the New Jersey Department of Labor may pursue penalties of up to $1,000 for the first violation and $2,500 for each subsequent violation.
The law permits employers to obtain access to personal social media accounts to ensure legal/regulatory compliance, to investigate work-related employee misconduct, or to investigate potential disclosures of the employer's proprietary, confidential, or financial information.
Despite these important protections for employers, several questions remain unanswered, including the following:
How does an employer's monitoring of its computer systems impact employee privacy rights if employees log in to personal social media accounts from work computers?
How much "business-related" use is sufficient to exempt an otherwise "personal" social media account from the law's ban on employer access? Does merely "connecting with," "friending," or communicating with a business contact constitute a "business purpose" under the law?
Does a supervisor's request to "follow," "friend," or "connect with" an employee constitute a "request" for "access to" an employee's "personal account"?
Implications of Assembly Bill A2878/S1915
All New Jersey employers should take this opportunity to evaluate and consider revising their policies and internal procedures to ensure compliance with the legislation, including taking the following actions:
Ensure that current or prospective employees are not asked to provide log-in or password information for any personal social media account
Remind managers that retaliation based on the refusal by an applicant or employee to provide access to a personal social media account is prohibited
Evaluate the extent to which personal social media access is permitted in the workplace
Protection for Employees Investigating Pay Equity
Assembly Bill A2648/S1935
Assembly Bill A2648/S1935 amends New Jersey's Law Against Discrimination to prohibit retaliation against employees who seek information from current or former colleagues regarding their pay, benefits, and membership in protected groups "if the purpose of the request for the information was to assist in investigating the possibility of . . . potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits." In 2012, Governor Christie conditionally vetoed the initial draft of the bill, which would have amended New Jersey's whistleblower law, the Conscientious Employee Protection Act. The revised bill defines the parameters of an employee's "protected conduct" more narrowly than the initial bill.
The amended Law Against Discrimination now prohibits reprisals against an employee who requests information from any current or former employee regarding their position and compensation (e.g., job title, occupational category, wages, and benefits) or the employee's membership in a protected class (e.g., gender, race, ethnicity, military status, or national origin), as long as the purpose of the request is to investigate or take legal action regarding alleged discrimination in compensation. Importantly, the provision does not require employees to respond to such inquiries from co-workers.
The new provision is effective immediately.
Implications of Assembly Bill A2648/S1935
All New Jersey employers should consider revising their employment policies and training supervisory personnel to ensure that employees who engage in protected conduct are treated in accordance with the amended Law Against Discrimination.Copyright © 2013 by Morgan, Lewis & Bockius LLP. All Rights Reserved.
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