On March 21, 2013, the New Jersey legislature overwhelmingly passed one of the most pro-employee social media password protection bills in the nation. The bill not only prohibited employers from requesting employee passwords to their personal social media accounts, but also prohibited employers from even asking employees or applicants if they possessed a personal social media account. The bill conferred on applicants and employees the right to sue for damages.
Over May 6, 2013, Governor Chris Christie issued a statement and a “conditional veto” of the measure. The conditional veto means the governor objects to parts of a bill and contains proposed amendments that would make the bill acceptable to him. If the legislature re-enacts the bill with the recommended amendments, the governor will have another opportunity to sign the bill and presumably would sign it.
In his veto statement, Governor Christie acknowledged the bill’s positive objective, i.e., to protect employees and applicants “from overly aggressive invasions by employers.” At the same time, he criticized the bill as overly broad, presenting employers and interviewers with a high risk of lawsuits. In the governor’s words: “Those privacy concerns, however, must be balanced against an employer’s need to hire appropriate personnel, manage its operations, and safeguard its business assets and proprietary information. Unfortunately, this bill paints with too broad a brush.”
Governor Christie noted, for example, that as currently drafted, the bill would prohibit an employer interviewing an applicant for a marketing position from asking about the applicant’s use of social media so that the employer could gauge the applicant’s technological skills and media savvy. “Such a relevant and innocuous inquiry would, under this bill, subject an employer to protracted litigation, compensatory damages, and attorneys’ fees — a result that could not have been the sponsors’ intent," the governor said. Additionally, the governor stated:
"In view of the over-breadth of this well-intentioned bill, I return it with my recommendations that it be more properly balanced between protecting the privacy of employees and job candidates, while ensuring that employers may appropriately screen job candidates, manage their personnel, and protect their business assets and proprietary information."
Governor Christie recommended eliminating the private right of action and replacing it with potential penalties and a fine from the New Jersey Department of Labor and Workforce Development.
However, as noted in a previous entry, the original bill passed 75-2 in the General Assembly, so if the legislature wants to ignore the governor and pass the bill as-is, it likely can because only a two-thirds majority is needed to override the veto. As of May 7, 2013, the legislature had asked for two readings of the veto message and proposed changes, thereby signaling that perhaps it intends to seriously consider the governor’s well-founded concerns.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
