September 26, 2012 | Comments Off
Posted by Ryan Carlson
As it now stands, Illinois and Maryland are the only states that have passed legislation prohibiting employers from requiring applicants and existing employees to disclose their social media passwords. Several other states such as California have similar legislation in progress.
On September 20, 2012, New Jersey moved closer in joining the social media legislative bandwagon when The Senate Labor Committee voted 4-0-1 in favor of the “Facebook Bill.” The Senate Labor Committee approved two bills, S1915 and S1916, which are collectively referred to as the “Facebook Bills.” S1915 prohibits employers from requiring that applicants and employees divulge their social media passwords and S1916 prohibits colleges from doing the same for college applicants and students.
The contents of the New Jersey Facebook Bills, however, differ greatly from existing legislation in states such as Maryland in both their intended purpose and the parties meant to be protected. In Maryland, Senate Bill 433 was enacted for the purpose of providing protection for both employees and employers. While the Bill generally prohibits employers from forcing employees to provide social media passwords, it recognizes the circumstances in which employers may have legitimate business justifications for requesting such information. To strike this appropriate balance, the Maryland Bill allows employers to have access to employee social media passwords if the employer has reason to believe that the employee is downloading the employer’s proprietary information or financial data onto a social media website such as Facebook, Linked In or MySpace.
The New Jersey Facebook Bills, on the other hand, fail to account for the legitimate interests of employers in having access to employee social media passwords. In fact, the New Jersey Bills do not provide any protection for employers. S1915 provides wholesale prohibition of employers from requesting social media passwords from job applicants and employees regardless of the employer’s justification for doing so. Unlike Maryland’s Bill, S1915 also imposes fines on employers who violate the Bill’s provisions, including a $1000 fine for the first offense and $2500 for each subsequent offense, as well as the right for an employee or job applicant to institute a civil cause of action against an employer and obtain injunctive relief, compensatory and consequential damages and attorneys’ fees and costs.
Although the New Jersey Facebook Bills still must move before the full Senate for approval prior to passage, the Bills could substantially impact employers who must already defend against the plethora of different lawsuits brought by former, current and prospective employees. As the New Jersey Facebook Bills are currently drafted, employers may now be held liable for violating employee privacy rights even if legitimate reasons exist for accessing an employee’s social media password information such as when an employee may be downloading unauthorized and confidential proprietary information of the employer. It will be interesting to see how the Bills address these and other situations that will surely arise if and when the Bills become effective.
Employers should continue to pay close attention to the status of these Bills and may have to revisit their social media policies to conform to the new legislation.