New Jersey’s New Social Media Law: Balancing Privacy Interests and Economic Opportunity

Whether we talk about Amazon drones or social media, striking the proper balance between the public’s interest in privacy and the business industry’s quest for economic opportunity is never easy. New Jersey’s recently implemented social media law reflects an attempt to resolve one aspect of that struggle.

The new law, which took effect in December 2013, restricts how employers can access social media accounts of employees and job applicants. For example, businesses can no longer require prospective employees to provide their user name, password, or any other information needed to access one’s social networking sites such as Twitter, Facebook, and Pinterest.

While the new restrictions may seem to favor employees, the final version of New Jersey’s social media law reflects lawmakers’ attempts to both protect users’ privacy interests and allow businesses to capitalize on the information source offered by this ever-growing technology. In fact, Govornor Chris Christie conditionally vetoed the initial version of the law, claiming that it would be too one-sided.

While Christie acknowledged the privacy concerns of job candidates and employees, he stated that their rights must be balanced against employers’ needs to hire appropriate personnel, manage their operations and safeguard their business assets and proprietary information. His conditional veto message echoed the concerns raised by the business community that the bill “paints with too broad a brush.”

Accordingly, the final version of the law contains a number of protections designed to help employers. For instance, the law authorizes New Jersey businesses to investigate an employee’s social media activities after receiving specific information about work-related misconduct. It also allows businesses to investigate the transfer of proprietary information to an employee’s personal account.

Companies can also require employees to disclose the passwords of social media accounts created by, or maintained for the benefit of, the employer. Employers are also not prohibited from accessing the social media pages of applicants or employees to the extent that they are publicly available. While employers may face administrative fines for violating the law, the final version of New Jersey’s social media law eliminated a private cause of action for employees.

While the New Jersey legislature and the Governor may have been able to some balance in this case, there are a myriad of privacy issues impacting New Jersey businesses that will have to be hashed out in the future. In the meantime, we encourage businesses to work with experienced counsel to navigate the ever-changing waters.

If you have any questions about New Jersey’s new social media law or need compliance assistance, please contact me, Fernando M. Pinguelo, or the Scarinci Hollenbeck attorney with whom you work. To learn more about data privacy and protection and cybersecurity, visit eWhiteHouseWatch.com.