New Jersey Legislative Update: Pay Equity Protection, Social Media and Employer Responses to Unemployment Insurance Requests for Information
August was a busy month for New Jersey lawmakers with Governor Christie signing two bills, one regarding pay equity and one concerning personal social media accounts that he had conditionally vetoed earlier, and a bill regarding the impact of an employer’s failure to respond to a request for information for purposes of unemployment insurance benefits. As described below, each bill will impact an employer’s compliance obligations and should be appropriately integrated into management practices.
Assembly Bill No. 2648 (A-2648), signed by the Governor on August 29, 2013, is a pay equity protection measure amending the New Jersey Law Against Discrimination (NJLAD) to bar employers from retaliating against employees who share information about the job title, occupational category or rate of compensation and other employment matters, or the gender, race or other protected characteristic of current or former co-workers when the inquiries are made to assist in investigating the possibility of unlawful discriminatory treatment in pay, compensation, bonuses, or benefits. It took effect upon enactment.
While the previously vetoed version of A-2468 would have protected those discussions under the State Conscientious Employee Protection Act, Governor Christie suggested that the amendment was more consistent with the underlying goals of the NJLAD, because that is the statute under which workplace discrimination claims are brought. Governor Christie noted that “[t]oo often in our past, women have seen their incalculable contributions to the workplace insufficiently compensated. We cannot allow that progress to succumb to ignorance.”
Assembly Bill No. 2878 (A-2878), also signed by the Governor on August 29, 2013, prohibits employers from requiring or requesting any employee or prospective employee to provide or disclose the user name or password or in any way provide the employer access to a personal account through the use of an electronic communications device. A-2878 further prohibits employers from retaliating or discriminating an individual who has, or was about to:
Refuse to provide access to a personal social media account;
Participate in any complaint, investigation, proceeding or action concerning a violation of the act; or
Otherwise oppose a violation of the act.
Violations under the act are enforced through the Department of Labor and Workforce Development and violating employers could be subject to civil penalties up to a maximum of $1,000 for the first violation and $2,500 for each additional violation. Governor Christie’s veto of the original version of the bill was based on a determination that it was overbroad and needed to provide for specific employer rights.
A key employer protection in A-2878 allows employers to investigate compliance with applicable laws, regulations or “prohibitions against work-related employee misconduct” when the employer receives specific information regarding an employee’s personal social media account, and also to investigate an employee’s actions related to the “unauthorized transfer of an employer’s proprietary information, confidential information or financial data to a personal account.” The bill further clarifies that the employer is not prohibited from “viewing, accessing, or utilizing information about a current or prospective employee” that is available in the public domain.
New Jersey thus became the ninth State this year, and the twelfth State overall to enact legislation prohibiting employers from seeking or accessing current or prospective employees’ personal social media account information. Federal legislation similar to these state social media account password protection laws has been introduced, including: the Social Networking Online Protection Act (HR-537) and the Password Protection Act of 2013 (HR-2077).
Senate Bill No. 2739 (S-2739), signed by the Governor on August 19, 2013, amends the New Jersey Unemployment Compensation Law to ensure that employers promptly respond to Division of Unemployment and Temporary Disability Insurance (Division) requests for information about claims for unemployment benefits. In accordance with this Bill, if the Division erroneously pays a benefit because the employer failed to respond in a “timely or adequate manner” to a Division request for information related to the claim and the employer has an established pattern of failing to respond to these requests, the Division is prohibited from relieving the employer’s account for the charged benefit payments. A benefit payment is “erroneous” when it would not have been made but for the employer’s failure to make a “timely and adequate” response. The “pattern of failing” is established when the employer repeatedly fails to respond to Division requests for information related to a claim for benefits, unless the number of failures is less than three or less than two percent of the number of Division requests, whichever is greater.
The act does not specify what is considered “timely or adequate,” but pre-existing statutory language provides an employer with ten days after the Division request to respond before the Division relies entirely on other sources to make a determination of wages and time worked. Employers who previously may have failed to respond because it might result in a denial of benefits to the claimant now have more of an incentive to comply.