NJ Gov. Vetoes Employer Facebook Password Request Ban

Gov. Chris Christie closeup

Photo: Bob Jagendorf

New Jersey Gov. Chris Christie on Thursday vetoed a law passed by the legislature that would ban employers from asking for the social media passwords of workers and applicants. Christie said that he would sign the bill if it were amended to exclude some of its more restrictive components.

New Jersey would have been the eighth state to stop businesses from snooping into their current or prospective employees’ Facebook and Twitter accounts, although the Jersey law would have gone several steps beyond the protections that other states have provided.

If the legislature removes provisions that ban employers from even asking about the existence of social media accounts, and if it adds language protecting employers’ ability to investigate workplace misconduct or data theft, Christie said he will sign it into law.

Christie’s preferred bill would still carry civil penalties of $1,000 for the first violation and $2,500 for subsequent ones, but not allow further private action to collect damages and attorney’s fees.

The bill that passed already allowed employers to ask to access accounts in the course of an investigation into harassment or discrimination.

The original bill passed 75-2, so the legislature could probably easily override the governor’s veto, although they may accede to his requests in the spirit of cooperation.

 

Legislation Pending

The cluster of new social media laws stemmed from reports last year that applicants for jobs in the Maryland correctional system were being asked to give up their passwords.

Maryland passed a law last year banning the practice, and California, Illinois and Michigan followed suit, according to the National Conference of State Legislatures. Additionally, Arkansas, California, Delaware and Michigan make the same provision for colleges and universities.

Arkansas, New Mexico and Utah have enacted similar employment bills this year, while others in Colorado and Washington await their governors’ signature. A number of other states have legislation pending.

New Jersey already has one social media password law in place, last year passing a bill banning institutes of higher education from requiring user names and passwords from students or applicants.

 

Low Hanging Fruit

Donald W. Schroeder

States have a dual interest in passing social media laws: To protect workers’ privacy by guarding their passwords, as well as to protect employers from unwittingly coming across information that could expose them to discrimination suits.

“I agree with the general principle that employers should refrain from getting into an applicant’s personal private information that is not otherwise available,” says Donald W. Schroeder, an employment attorney at Mintz Levin. “I think it’s a hornets nest and can lead to all sorts of litigation issues down the line the more an employer delves into a person’s background.”

However, the New Jersey legislature may have taken things a step too far by making questions completely off limits about whether applicants even have a social media account.

Whether an applicant is fluent and experienced with social media, Schroeder points out, is a legitimate job function for numerous positions that involve communications or outreach. “Having an employer refraining from even asking if someone has a social media website seems a bit unpractical,” he says. “A lot of jobs have it as a component of what they do, and what they’re expected to do in their capacity working for an employer.”

In general, except for specific misconduct investigations or for a high-level security clearance, it is foolish for employers to snoop into the personal lives of their workers anyway, in case they learn something that could be later held against them in the context of a discrimination suit.

In any event, more social media password laws are sure to come, this year and in the future. “It’s low hanging fruit,” Schroeder says. “Lawmakers can get behind it pretty easily and feel as though they’re standing up for people’s rights.”

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