Caveat Vendor

Social Media Privacy – New Jersey Joins The Fray

May 22, 2013

By Paul Hastings Professional

Blog readers may recall our prior posts (here and here) on the growing movement among the states to adopt laws prohibiting employers from requiring employees or job applicants to disclose information on personal social media.

Now, New Jersey has joined the fray, passing its own law to that end. In our prior post, we raised questions about certain aspects of these state laws, which have been sweeping in nature.

Interestingly, the New Jersey law, which was revised to reflect objections raised by New Jersey’s governor, Chris Christie, includes some important limitations.

• First, it excludes from its scope correctional and law enforcement agencies.  Some of the publicity surrounding incidents of social media access have involved correctional authorities seeking background information – such as gang affiliations – from job applicants.  (In fact, Maryland’s law was passed in response to precisely such an incident.)

• The law also excludes any “personal account” that is used by the employee for business-related reasons.  An employer remains free to adopt and to enforce policies that include accounts used for those purposes, even if they otherwise are “personal” in nature.

• The law allows an employer to view or access information that “can be obtained in the public domain.”  In other words, unrestricted “tweets” are fair game.  (A few other states also have included this limitation.)

• Lastly, as is also true in some other states, the law makes clear that it does not apply to employer investigations of misconduct or to ensure compliance with applicable laws and regulations.  That last item is particularly important for employers in regulated industries – such as securities – that bear substantial obligations to monitor employee communications and conduct.  However, unlike in most other states, this dispensation is not limited solely to financial and similar regulatory regimes.

Earlier versions of the law also provided for a private right of action in the event of violation.  That provision, which is not common in other states’ laws, was removed at the governor’s direction.

New Jersey is just the latest state to pass a law on this subject, but its effort reflects a more nuanced approach than those of most of its predecessors.  It will be interesting to see whether that is a model others choose to follow.

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