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Trading Secrets A Law Blog on Trade Secrets, Non-Competes, and Computer Fraud

New Jersey Poised To Adopt New Social Media Legislation

Posted in Legislation, Social Media

With the passage of A2878 in the New Jersey General Assembly in March, New Jersey is poised to become the eighth state to “pass legislation preventing employers from asking prospective and current employers for passwords to their accounts on social media sites.” The proposed law, which is now being considered by Governor Chris Christie, would become the most restrictive social media legislation in the United States.

A2878 would be the first social media law to prohibit employers from even inquiring whether employees or job applicants have personal social media accounts. Any employer who violates this prohibition could be subject to a private lawsuit by the applicant or employee. Additionally, employers may face other civil penalties of up to $1000 for the first instance and up to $2500 for each additional violation. Under the terms of the proposed law, neither of these penalties can be waived.

The passage of the law could create significant challenges for employers trying to act within its bounds. Experts worry that employers could violate the law inadvertently, since many employees use social media to do their jobs. Furthermore, the prohibition could prove problematic with social media networks like LinkedIn, which employers commonly use. Another worry is that the law encourages an already litigious society. The bill allows an employee to file suit against his or her employer up to a year after the violation. Exacerbating the problem, an employee is entitled to recover damages and attorneys’ fees in the suit, encouraging litigious behavior. Furthermore, since the law is so easy to violate, it might encourage hawkish behavior among attorneys.

Others argue that the law could protect companies from liability by clearly allowing them to decline involvement in the activity of their employees on social media networks. Since the employer is not allowed to know about the employee’s social media involvement, employers are not placed in a position where an employee’s social media commentary or activities could be viewed as that of the employer.

Ruben Ramos, a New Jersey State Assemblyman sponsoring the bill, reportedly argued that this law is necessary to prevent invasions of privacy: “If we don’t draw this line in the sand now, who knows how far this invasion of privacy might be taken. In an economy where employers clearly have the upper hand, we need to protect the rights of job seekers from being trampled.”

New Jersey Governor Chris Christie has yet to decide whether to sign the legislation. According to a spokesman for the governor, “We’ll have to see the bill in its final form and consider it, and the Governor will act within the allotted time allowed.” Governor Christie did sign a similar law in December 2012, prohibiting colleges and universities from requiring applicants and students to disclose their social media accounts and passwords.

With the passage of the bill, New Jersey would be the eighth state with this type of protective social media legislation in place. We will continue to keep you apprised of the bill’s progress as well as other developing social media legislation throughout the country.