On May 5, 2012, five members of the New Jersey Assembly introduced Bill No. 2878, which prohibits employers from requiring employees to disclose personal information for certain electronic communications devices. The bill prohibits employers from requesting or requiring current or prospective employees to identify if they have personal accounts with social networking cites (such as Facebook), and from requiring or requesting employees to provide user names or passwords for these accounts. The Senate has amended and approved the bill, and all that remains for the bill to become law is Assembly approval of the amendments and the Governor’s signature.

The bill provides significant enforcement mechanisms and protections for aggrieved employees. For instance, the bill provides that employees may sue their employers for violations of its provisions. An aggrieved individual may seek a combination of injunctive relief (such as reinstatement), monetary damages (such as lost wages or benefits), and attorneys’ fees and costs. Further, an employer will be assessed a civil penalty of up to $1,000.00 for the first violation, and up to $2,500.00 for any subsequent violation. Finally, the bill prohibits employers from retaliating in any way against an employee who exercises his or her rights under the bill. These retaliation provisions extend to employees who refuse to provide their passwords, file complaints, or participate in investigations into violations of the bill.

On June 21, 2012, an Assembly Committee amended the bill to include language differentiating between personal and professional networking sites. The bill protects an employee’s privacy interest in his or her personal accounts, or those accounts used for personal communications unrelated to the employer’s business. However, the bill does not extend to accounts used by the employee to engage in business related communications. This amendment arguably excludes protection for the popular professional networking site “LinkedIn.”

The Senate Labor Committee favorably reported the bill on September 20, 2012, and the full Senate overwhelming approved the bill with a 38-0 vote on October 25, 2012. The Senate amended the bill slightly, however, exempting the Department of Corrections, the State Parole Board, county correction departments, and any State or local law enforcement agency from coverage as an “employer.” The Assembly must now approve these changes before the bill can go before the governor.

Although the bill has not yet been enacted, it is not too early to reexamine your hiring practices and social networking policies. The bill demonstrates that employers walk a risky (and potentially expensive) fine line when requesting or requiring information about employees’ social networking accounts. Theses risks can be avoided, however, by ensuring that your policies are up to date.