On March 21, 2013, the New Jersey legislature overwhelmingly
passed one of the most pro-employee social media password
protection bills in the nation. The bill not only prohibited
employers from requesting employee passwords to their personal
social media accounts, but also prohibited employers from even
asking employees or applicants if they possessed a personal social
media account. The bill conferred on applicants and employees the
right to sue for damages.
Over May 6, 2013, Governor Chris Christie issued a statement and
a “conditional veto” of the measure. The conditional
veto means the governor objects to parts of a bill and contains
proposed amendments that would make the bill acceptable to him. If
the legislature re-enacts the bill with the recommended amendments,
the governor will have another opportunity to sign the bill and
presumably would sign it.
In his veto statement, Governor Christie acknowledged the
bill’s positive objective, i.e., to protect employees and
applicants “from overly aggressive invasions by
employers.” At the same time, he criticized the bill as
overly broad, presenting employers and interviewers with a high
risk of lawsuits. In the governor’s words: “Those
privacy concerns, however, must be balanced against an
employer’s need to hire appropriate personnel, manage its
operations, and safeguard its business assets and proprietary
information. Unfortunately, this bill paints with too broad a
Governor Christie noted, for example, that as currently drafted,
the bill would prohibit an employer interviewing an applicant for a
marketing position from asking about the applicant’s use of
social media so that the employer could gauge the applicant’s
technological skills and media savvy. “Such a relevant and
innocuous inquiry would, under this bill, subject an employer to
protracted litigation, compensatory damages, and attorneys’
fees — a result that could not have been the sponsors’
intent," the governor said. Additionally, the governor
"In view of the over-breadth of this well-intentioned bill,
I return it with my recommendations that it be more properly
balanced between protecting the privacy of employees and job
candidates, while ensuring that employers may appropriately screen
job candidates, manage their personnel, and protect their business
assets and proprietary information."
Governor Christie recommended eliminating the private right of
action and replacing it with potential penalties and a fine from
the New Jersey Department of Labor and Workforce Development.
However, as noted in a
previous entry, the original bill passed 75-2 in the
General Assembly, so if the legislature wants to ignore the
governor and pass the bill as-is, it likely can because only a
two-thirds majority is needed to override the veto. As of May 7,
2013, the legislature had asked for two readings of the veto
message and proposed changes, thereby signaling that perhaps it
intends to seriously consider the governor’s well-founded
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.
In prior articles, we have discussed various decisions by the National Labor Relations Board ("NLRB" or the "Board") protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the "Act").