P.L. 2013, c.155 (A2878 4R)

An Act prohibiting the requirement to disclose personal information for certain electronic communications devices by employers.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. For purposes of this act ³[”]:³

“Electronic communications device” means any device that uses electronic signals to create, transmit, and receive information, including a computer, telephone, personal digital assistant, or other similar device.

“Employer” means an employer or employer’s agent, representative, or designee. ³The term “employer” does not include the Department of Corrections, State Parole Board, county corrections departments, or any State or local law enforcement agency.³

¹“Personal account” means 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. This definition shall not apply to any account, service or profile created, maintained, used or accessed by a current or prospective employee for business purposes of the employer or to engage in business related communications.¹

“Social networking website” means an Internet-based service that allows individuals to construct a public or semi-public profile within a bounded system created by the service, create a list of other users with whom they share a connection within the system, and view and navigate their list of connections and those made by others within the system.

2. No employer shall⁴[:

a. Require] require⁴ ²or request² a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to, a personal account ¹[or service]¹ through an electronic ²[communication] communications² device⁴[; or

b. In any way]⁴ ²[inquire as to whether] ⁴[require or request that² a current or prospective employee ²disclose whether the employee² has]⁴ ¹[an] ⁴[a personal¹ account]⁴ ¹[or profile on a social networking website]¹.

3. No employer shall require an individual to waive or limit any protection granted under this act as a condition of applying for or receiving an offer of employment. An agreement to waive any right or protection under this act is against the public policy of this State and is void and unenforceable.

4. No employer shall retaliate or discriminate against an individual because the individual has done or was about to do any of the following:

a. Refuse to provide or disclose any user name or password, or in any way provide access to, a personal account ¹[or service]¹ through an electronic communications device;

b. ⁴[File a]⁴ ²[complain] ⁴[complaint² under] Report an alleged violation of⁴ this act ⁴to the Commissioner of Labor and Workforce Development⁴;

c. Testify, assist, or participate in any investigation, proceeding, or action concerning a violation of this act; or

d. Otherwise oppose a violation of this act.

⁴[5. Upon violation of any provision of this act, an aggrieved person may, in addition to any other available remedy, institute a civil action in a court of competent jurisdiction, within one year from the date of the alleged violation. In response to the action, the court may, as it deems appropriate, order or award any one or more of the following:

a. With respect to a prospective employee:

(1) injunctive relief;

(2) compensatory and consequential damages incurred by the prospective employee as a result of the violation, taking into consideration any failure to hire in connection with the violation; and

(3) reasonable attorneys’ fees and court costs.

b. With respect to a current or former employee:

(1) injunctive relief as it deems appropriate, including reinstatement of the employee to the same position held before the violation or the position the employee would have held but for the violation, as well as the reinstatement of full fringe benefits and seniority rights;

(2) compensatory and consequential damages incurred by the employee or former employee as a result of the violation, including compensation for lost wages, benefits and other remuneration; and

(3) reasonable attorneys’ fees and court costs.]⁴

⁴[6.] 5.⁴ An employer who violates any provision of this act shall be subject to a civil penalty in an amount not to exceed $1,000 for the first violation and $2,500 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

⁴[¹7.] 6.⁴ a. Nothing in this act shall be construed to prevent an employer from complying with the requirements of State or federal statutes, rules or regulations, case law or rules of self-regulatory organizations.

b. Nothing in this act shall prevent an employer from implementing and enforcing a policy pertaining to the use of an employer issued electronic communications device ⁴or any accounts or services provided by the employer or that the employee uses for business purposes.

c. Nothing in this act shall prevent an employer from conducting an investigation:

(1) for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based on the receipt of specific information about activity on a personal account by an employee; or

(2) of an employee’s actions based on the receipt of specific information about the unauthorized transfer of an employer’s proprietary information, confidential information or financial data to a personal account by an employee.

d. Nothing in this act shall prevent an employer from viewing, accessing, or utilizing information about a current or prospective employee that can be obtained in the public domain⁴.¹

¹[7.] ⁴[8.¹] 7.⁴ This act shall take effect ¹[immediately] on the first day of the fourth month following enactment¹.

Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers.