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.

Neil H. Deutsch On G+