Facebook, Google+, LinkedIn, YouTube, Blogging, Twitter, Instagram, the list goes on.  We live in a digital age and people share their information with the world.  The use of social media by people is ever increasing.  However, thanks to a recent law enacted by the New Jersey Legislature and signed by Governor Christie, Assembly Bill 2878 (A2878), employees will not have to share this information with their employers.  The bill takes effect December 1, 2013.

Prohibitions on Employers

Under the new law employers cannot “require or request a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to, a personal account. . . .” (A2878).  Furthermore, employers cannot require an employee or potential employee to waive this right as a condition of employment.  While this includes social media sites, the legislature broadly wrote the law to include all private usernames and passwords.

The bill also has a retaliation clause.  The clause states that an employer cannot retaliate against an employee for failing to provide username or password information to a personal account or social media site, reporting a violation of the act to the Commissioner of Labor and Workforce Development, or testifying, assisting, or participating “in any investigation proceeding or action concerning a violation of this action.” (A2878).

What Can Employers Ask and Do?

While the new law protects an employee’s private information, it does not prevent employers from asking for an employee’s username and password to an employer provided service or account.  For instance, if an employer provides an e-mail address, the username and password are company property and an employer can require the employee to give that information to the employer.  If an employee’s job requires them to work on a company’s social media sites the company would also be allowed to know those usernames and passwords.

The new law also allows employers to learn this information if it is required to comply with “State or federal statutes, rules or regulations, case law or rules of self-regulatory organizations.” (A2878).

Lastly, the law allows employers to conduct investigations relating to compliance with applicable laws or employee misconduct or an employee’s actions relating to the distribution of proprietary information.  In these instances an employer can request this information to complete the necessary investigation.

Any information on a prospective or current employee that is readily available in the public domain is also allowed to be accessed by employers.

 What Will Happen to Employers Who Violate the Law?

As a penalty to employers who violate A2878, employers will have to pay a civil penalty not to exceed $1,000 for the first violation.  Any subsequent violation of this Act will result in a civil penalty not to exceed $2,500.  These fines will be collected “by the Commissioner of Labor and Workforce Development in a summary proceeding.” (A2878).

What Should Employers Do?

Employers should speak with a business attorney to make sure that they are compliant with the law.  If the Employee Handbook of a company requested such information from prospective or current employees prior to the enactment of this statute, the Handbook should be amended to reflect the new law.  Safeguards should be put in place to make sure that such information is not asked by interviewers during the hiring process.

The business attorneys of The Jayson Law Group LLC are ready to assist your business in making sure you are compliant with the law.