Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The New Jersey bill adds a new prohibition not seen in any prior law that actually could be detrimental to job applicants and employees. Specifically, employers cannot “[i]n any way require or request that a current or prospective employee disclose whether the employee has a personal account.” Consequently, were an employer to search publicly available social media content for information about an employee or applicant and discover negative information that might relate to the applicant or employee, such as racist comments or a predilection for sex with minors, the employer could not ask whether the account where the content is posted is, in fact, the applicant’s or employee’s personal account. Moreover, if the employer does inquire and the applicant or employee refuses to confirm or deny whether he or she posted the offensive social media content, New Jersey’s law would make it a violation for the employer to then take adverse action based on the individual’s refusal to respond. In other words, the employer would be worse off if it tried to “do the right thing” and attempted to verify the authenticity of information that, if true, would lead to an adverse employment action.
The New Jersey bill also has the most generous remedial scheme. “Facebook” laws in Maryland and California do not expressly provide a private right of action. By contrast, the New Jersey bill confers a private right of action on applicants or employees to recover unlimited compensatory and consequential damages. While the laws in Utah and Michigan also confer a private right of action, damages are capped at $500 and $1,000 per violation, respectively. Illinois’ law does not cap damages; however, it requires that applicants or employees first attempt to resolve their complaint through the state labor department. No such administrative exhaustion requirement applies under the New Jersey bill.
To be sure, once the bill is likely enacted, it will not entirely handcuff New Jersey employers from performing investigations and background checks necessary to run a safe and efficient operation without running afoul of the law. However, before investigating information present on an employee's or applicant's "personal account," human resources professionals are encouraged to seek guidance from inside or outside counsel to ensure compliance with this proposed law. If approved, the law will go into effect on the first day of the fourth month following its enactment.
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