The bill, which will likely pass, illustrates the trend towards limiting employers’ use of social media for hiring and firing decisions. In its current form, the bill (A-2878) would prohibit employers from requiring a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to a personal account or service through an electronic communications device.
It would also stop employers from even asking if a current or prospective employee has an account or profile on a social networking website. The bill has passed the state Senate, and it is now in ‘concurrence’ in the Assembly, which is considering it for a second time to align the proposed legislation with certain Senate Amendments.
Governor Christie is likely to sign the bill into law, and the restrictions would represent one more roadblock for employers that have legitimate questions. While a prohibition against employees or prospective employees having to divulge their username or password is not so unacceptable, the bill goes overboard by preventing employers from even asking if an individual has a social account or profile, especially if the person in question is applying for or has a job that involves social media responsibilities.
In fact, existing laws already provide reasonable safeguards for employees’ social media accounts. A 2009 U.S. District Court District of New Jersey case, Brian Pietrylo and Doreen Marino v. Hillstone Restaurant Group D/B/A Houston’s, referenced and reinforced federal and New Jersey laws that prohibit employers from pressuring workers for access to their social media accounts. For this reason, the pending legislation is redundant, although it also expands the range of prohibited employer activity.
The good news is that the bill would not prevent employers from simply doing their own online search. Employers can still do their own Facebook or other search to see if a prospective or current employee is on social media. If the account is not password protected, the employer will likely still be able to access it without running afoul of the law.
If the bill is signed into law, however, any company with an employment policy that addresses social media activity should consider working with its legal advisers to review its rules. In addition, companies that do not have a social media hiring policy in place would be wise to consider speaking with their legal advisers before structuring and implementing one.
The National Labor Relations Board and state legislatures appear to be stepping up their efforts to restrict employers’ investigation of employees’ social media use, so this is likely to become an even greater area of concern for companies.