There has been a lot of stories in the newspapers recently about employers demanding from their potential employees their usernames and passwords of Facebook and other social network sites. In these economic times many people feel that they have no choice but to hand over this intimate part of their lives to a potential employer with the hope of getting a job. Unfortunately, giving a potential employer with access to your Facebook page, also gives this person access to information about your friend. So while you may not have anything on your Facebook page that you would not want your employer to see, but maybe your friends posts are less than acceptable.
These stories have prompted the legislature to act. The federal government is working on Social Networking Online Protection Act (SNOPA). Maryland is the first state in the nation to pass a law prohibiting an employer to taking these actions. There are several states that have pending legislation. New Jersey is one of those states. NJ has introduced two bills that would address this situation. The first bill, A2878 would prohibit any employer from requiring “an individual to waive or limit any protection granted under this act as a condition of applying for or receiving an offer of employment.” The bill prohibits an employer or potential employer from requiring a person to provide access to their social media accounts or to even inquire whether they have a social media account.
The bill also goes further and would prohibit any agreement to give an employer access to a social media account as against public policy. Making it against public policy would prohibit any type of agreement between employer and employee from granting this kind of access.
A2878 also has a damages clause. The victim of such an act could seek:
- Injunctive relief, which could include re-instatement for employees.
- Compensatory and consequential damages
- Attorney fees and costs.
In addition the employer could be assessed a civil penalty of up to $1,000 for the first event and $2,500 for each additional violation.
The bill does limit these rights to some extent. A victim of an employer’s demand or inquiry of a social media account has 1 year to bring a suit against the employer.
A2879 is very similar to A2878 but applies to private and public institutions of higher education and protects not only job applicants but students as well. It does not apply to elementary and high schools. So a principal or teacher would not be violating the act to inquire about or require their students to turn over access to their social media accounts. This is unlike SNOPA which applies to all levels of the education system. It is interesting to note, that unlike SNOPA, A2879 does not apply to elementary and high school. Also, unlike A2878 there are no civil penalties applicable to the education system. A victim will still only have 1 year to file a suit and has all of the remedies that a private employee has.
As noted above, there is a federal bill working its way through the Congress. SNOPA applies to private employers and the education system so it does in one bill what NJ does in two different bills. It is also broader than the state bills in that it applies to email accounts as well as social networking sites.
A2878 and A2879 have been released from committee. A2878 has been passed by the full Assembly on Monday June 25th. It is not scheduled for a vote in the Senate before the Legislature recesses for the summer. I also note that while A2879 has a senate version A2878 does not have a senate version. This means that unless a Senate version is introduced it is extremely unlikely that A2878 will be enacted into law at the current time. SNOPA was introduced on April 27, 2012 and referred to committee. It has not be heard by the committee as of yet.
So as of today, a New Jersey employer could ask for an employee’s account information including password to their facebook, google+, twitter, etc. accounts and review them. If these laws are based that ability will end. The bigger question is whether an employer would like to start or continue the employee/employer relationship with such an invasion and distrust.
