Review Completed on June 12, 2019

This resource was reviewed on June 12, 2019 to ensure that it reflects the most current law and market practice. There were no substantive changes made to the document.

Abstract:

A Q&A guide to employee privacy laws for private employers in New Jersey. This Q&A addresses employee privacy rights and the consequences for employers that violate these rights. Federal, local, or municipal law may impose additional or different requirements.

Overview of State Privacy Law

1. Please list each state law relating to employee privacy (for example, employee right to privacy, access to personnel files, electronic communications, surveillance and monitoring, medical examinations, and lawful off-duty activity laws), EXCEPT state laws on background checks and drug testing. For each, please describe:

  • What activity the law protects.
  • Which employers are covered.
  • Which employees are covered, including any exceptions for interns, independent contractors, minors or others.
  • Whether the law protects employees from their co-workers' actions in addition to their supervisor's actions.
  • Whether it provides for a private right of action
  • For statutes and regulations, the entity that administers the statute or regulation(s).

New Jersey Wiretapping and Electronic Surveillance Control Act: N.J.S.A. 2A:156A-1 to 2A:156A-37

The New Jersey Wiretapping and Electric Surveillance Control Act (Wiretap Act) prohibits any person from purposefully:

  • Intercepting, trying to intercept, or having another person intercept any wire, electronic or oral communication.
  • Knowing the information was obtained through a wire, electronic, or oral communication interception, either:
    • disclosing or attempting to disclose the contents or any evidence from the communication; or
    • using or attempting to use the contents or any evidence from the communication

(N.J.S.A. 2A:156A-3.).

Covered Employers

The Wiretap Act covers all persons, including private employers. However, the following exceptions apply to most New Jersey employers:

  • It is lawful for a switchboard operator or an officer, agent, or employee of a wire or electronic communication service provider to intercept a communication if the interception is either:
  • during the normal course of employment and part of the employee's duties; or
  • to protect the employer's rights or property.

    (N.J.S.A. 2A:156A-4(a).)

  • One of the parties to the communication has given prior consent to the interception (N.J.S.A. 2A:156A-4(d).)

In addition, the law exempts devices given to employees by their employers and which are used in the normal course of business from the definition of "electronic, mechanical or other devices" (N.J.S.A. 2A:156A-2(d)(1)). The statute does not clarify what "subscribers" means, but it is generally understood that the Wiretap Act excludes devices used by employees in the course of their business.

Covered Employees

The Wiretap Act covers all persons, including employees.

Co-Worker Violations

The Wiretap Act prohibits interception of wire, electronic, or oral communications by coworkers.

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