New Jersey Legislature Tackled Social Media, Wage Disclosure, and Domestic Violence Leave
The New Jersey Legislature and Governor Christie have been busy this year passing various bills, three of which employers should take note of.
New Jersey joined the national trend of enacting laws restricting employers’ rights to request employees’ social media passwords. There are eleven other states with similar laws, Maryland, and Illinois being the first to enact such laws. Over 30 states and the federal government have similar laws pending. These laws are a patchwork of greatly varying restrictions.
Some legislation contains exceptions such as where the employer reasonably believes the content of the social media account is relevant to an investigation into employee misconduct or employee violation of the law, while others contain no such exceptions. Some bills and laws prohibit the request of log-in credentials while others go further and prohibit employers from asking employees to open their social media pages in front of the employer (presumably so the employer can inspect the content). Some legislation prohibits requiring employees to “friend” or “link to” the employer or management and others do not.
The New Jersey law is broad compared to other laws enacted around the country. It prohibits employers from requiring/requesting current or prospective employees to provide or disclose their user name, password, or access to a “personal account.” A “personal account” is defined as “an account, service or profile on a social networking website that is used by a current or prospective employee exclusively for personal communications unrelated to any business purposes of the employer.” The law states it does not apply to accounts, services or profiles accessed “for business purposes of the employer or to engage in business related communications.” This language appears so broad it could encompass accounts used for business such as LinkedIn. Social media would include accounts like Facebook, Twitter, LinkedIn, Vine, Instagram, Pinterest, Tumblr, and MySpace.
In addition, the New Jersey law voids any agreement that would waive employee rights under this law. It also prohibits employers from retaliating or discriminating against an employee who refuses to provide this information, reports a violation of the law, or is involved in an investigation of a violation of the law.
The law is not all-encompassing. It recognizes an employer’s right to 1. enforce policies related to the use of employer issued electronic communications devises or accounts used for business purposes, 2. conduct investigations including those based on information from personal accounts, and 3. use information in the public domain.
The penalty for the first violation is $1,000 and then $2,500 for each subsequent violation. Employers who do business in New Jersey should make sure their policies and practices are in line with this law and employers who do business across several states should make sure they are complying with all applicable laws.
The Legislature also amended New Jersey’s Law Against Discrimination, adding language prohibiting retaliation against employees who request or disclose wage-related information for the purpose of assisting investigations into discriminatory treatment. Specifically, the new provision prohibits retaliation against an employee who discloses or requests from a current or former employee or his or her authorized representative information about job titles, occupational categories, rates of compensation, benefits, gender, race, ethnicity, military status, or national origin. The purpose of the request or disclosure must be to assist in investigating possible discriminatory treatment concerning “pay, compensation, bonuses, other compensation, or benefits.” This law was effective immediately.
Although this new law only prohibits retaliation where the purpose of the protected inquiry is to investigate pay-related discrimination, under the federal National Labor Relations Act (“NLRA”) there are similar but additional restrictions. The NLRA prohibits employers from restricting employees’ speech regarding the terms and conditions of employment, which includes pay-related information.
Domestic Violence Leave – NJ SAFE Act
In the summer, a new law emerged called the New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”) requiring employers with 25 or more employees to gives certain employees unpaid leave to address domestic violence or sexually violent offenses. Eligible employees must have worked at least 1,000 hours during the immediately preceding 12-month period. If an employee is eligible, he or she may take up to 20 days in a 12-month period if that employee is the victim of domestic violence or the victim of a sexually violent offense, or if the employee’s child, parent, spouse, domestic partner, or civil union partner is such a victim. The leave can be granted for medical attention, counseling, legal proceedings, or other reasons. Further, notice of this law must be posted; a model notice can be found at http://lwd.state.nj.us/labor/forms_pdfs/lwdhome/AD-289_9-13.pdf. It was supposed to be posted by October 1, 2013, so if you are a covered employee and you have not done so, you should post this notice immediately.
Regarding all of these laws, New Jersey employers should review with qualified counsel all written policies to ensure they are lawful and comply with any changes.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.965.0560.