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Pending Legislation to Protect Employee Privacy by Safeguarding Facebook Information

The popularity of social media pages like Facebook, LinkedIn, Twitter and other sites has exploded and become a new battleground for employees trying to protect their privacy. Employers are increasingly pushing job applicants and current employees to disclose their social media passwords and using the information to make decisions regarding employment benefits and hiring. New Jersey has recently introduced legislation in the form of S1915 designed to protect employees from this invasion of their privacy.

The New Jersey Senate Labor Committee voted on September 20, 2012 to adopt the Facebook Bill, which is designed to protect employees from being forced to disclose their social media login information. Currently, the only states to pass similar legislation protecting the privacy rights of employees are Illinois and Maryland, though other states are considering such laws.

Protections provided to employees by New Jersey S1915

The proposed legislation would prohibit an employer from the following actions regarding an employee or prospective hire’s social media sites:

  • Mandating disclosure of username or password
  • Requiring an employee to provide access to his or her social media profile, or account
  • Inquiring whether an employee has social media pages
  • Imposing a requirement that an employee waive the protections of this provision

While other states have adopted legislation similar to S1915, the proposed New Jersey legislation offers protection that is more extensive to employees. The Illinois and Maryland versions of the law provide exceptions where an employer has a basis to claim the employee is publishing proprietary or financial information from the company. S1915 provides no such exception and expressly provides that an agreement to waive these protections is void and unenforceable, because it violates public policy.

Remedies for violations may include a wrongful termination lawsuit

If this proposed legislation is enacted and your employer violates this legislation, the bill provides for a wide range of remedies, including:

  • Injunctive relief to prevent access to your social network account/profile
  • Reinstatement with back pay,  lost benefits and full seniority
  • Civil action for compensatory and consequential damages
  • Court costs and attorneys’ fees
  • Fines against the employer ($1,500 first offense, $2,500 second offense)

In the event an employer makes the decision not to hire an employee based on information obtained from a violation of this act, an award of consequential damages may take into account the damages incurred because the employee was denied the job opportunity. The act also provides protection against retaliation, so an employee who is terminated for exercising his or her rights under this act may have the right to bring an action for wrongful termination.

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Neil H. Deutsch

About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…

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About Bruce L. Atkins is regarded as one of New Jersey’s premier practitioners of employment and civil litigation. He has been selected to the New Jersey Super Lawyers prestigious list every year since 2005.  This honor, bestowed upon a recipient by the votes of his peers, is a powerful nod to the skill Mr. Atkins…

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Adam J. Kleinfeldt

About Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015.  He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters.  He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict…

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About Diane Englander Peyser joined Deutsch Atkins & Kleinfeldt, P.C. in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins & Kleinfeldt, P.C., Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination,…

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About Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA),…

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