The New Jersey Legislature has passed a bill (A2878/S1915) banning employers from asking applicants and employees for social media passwords or even if the person has a social media account.  It has not yet been signed by the Governor, so employers do not need to do anything yet.

 

We previously blogged about the bill on May 11, 2012 and our concern that the bill as drafted would prohibit employers from investigating complaints of harassment.  Since that blog post, I am proud to say that I worked with the New Jersey Business and Industry Association to add language that would permit employers to request access to social media accounts to the extent necessary to investigate complaints of harassment and discrimination.

 

Still of concern to employers is the fact that the law provides a private right of action for violations of the statute and an award of lost wages to any aggrieved person who was not hired or fired as a result of a violation to the law.  Employers with concerns may want to raise those concerns before the Governor signs the bill.

Employers in New Jersey should ignore the proposed legislation banning employers’ inquiries about employees’ Facebook and other social media at their own peril. 

 

The bill, which NJ.Com reported passed an Assembly panel yesterday, bans employers from even asking if an employee possesses a social media account, in addition to the barring of requesting disclosure of passwords. 

 

I blogged on April 10, 2012 that I believe the current rash of legislation and proposed legislation is an overreaction to a non-existent problem. Notwithstanding, it appears that the legislature will pass the bill, or some form of it. 

 

The bill as drafted would make it difficult for financial institutions to investigate potential insider trading activity and would make it exceptionally difficult for all employers to investigate claims of harassment where the conduct occurs on social media.

 

If employers do not think that employees’ slurs on social media is a problem, then they should review an April 17, 2012 article on theGrio.com. That article discusses a Miami-Dade firefighter’s race-baiting post on Facebook about the Trayvon Martin case.  That post prompted a flood of responses from his co-workers accusing him of bias. 

 

Under New Jersey’s proposed bill, an employer attempting to investigate this conduct could not even ask whether the firefighter had a Facebook account, much less if the post was his.  Throw in the fact that the firefighter is a union employee which means any discipline will likely be grieved and/or arbitrated, and it is going to be nearly impossible for the employer to effectively discipline the employee.

 

The question I have is, if this legislation is going to tie employers hands when investigating harassment complaints, are New Jersey lawmakers going to give employers a pass on any claim brought under the New Jersey Law Against Discrimination?  Somehow, I doubt it.