Employers Will Welcome Revised NJ “Facebook” Bill, Says Paranac

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New proposed law addresses hiring checks, other concerns, LeClairRyan attorney advises

New Jersey employers will find much to “like” in a revised so-called Facebook, Assembly Bill No. 2878, that’s pending in the New Jersey Legislature, according to Joseph P. Paranac Jr., a shareholder in national law firm LeClairRyan's Newark office.

“The original bill was conditionally vetoed by Governor Chris Christie over concerns regarding its unduly broad provisions,” explains Paranac, who focuses on labor and employment law. A conditional veto, similar to the federal line-item veto, enables the governor to reject particular provisions of a bill enacted by the legislature without vetoing the entire bill.

“Unfortunately, this bill paints with too broad a brush,” according to the governor’s Conditional Veto, which was issued on May 6, 2013. “For example, under this bill, an employer interviewing a candidate for a marketing job would be prohibited from asking about the candidate’s use of social networking so as to gauge the candidate’s technological skills and media savvy.”

Restrictions like that “would have represented one more roadblock for employers that have legitimate questions,” adds Paranac, who previously expressed similar concerns over the initial version of the bill.

“I can understand a prohibition against employees or prospective employees having to divulge their username or password,” says Paranac, noting that Christie did not disturb that restriction. “But I believe the bill went overboard by preventing employers from even asking if an individual has a social account or profile, especially if the person in question is applying for or has a job that involves social media responsibilities.”

The revised bill also codifies an employer’s right to sift through the Internet for information about a current or prospective employee, as long as the data can be obtained “in the public domain,” notes Paranac.

“Further, if an individual believes his or her rights have been violated, the new proposal limits their ability to sue,” Paranac adds. “The original bill could have clogged the courts with individual suits, but the new one specifies that any complaints will be brought by the Commissioner of Labor and Workforce Development, and sets the penalties at no more than $1,000 for the first violation, and $2,500 for any subsequent violation. The revised bill seems to have answered Christie’s concerns, and if the Legislature presents it to him in its current, revised format, I think he’s likely to sign it.”

Still, existing laws already provide reasonable safeguards for employees’ social media accounts, Paranac argues.

“A 2009 U.S. District Court District of New Jersey case, Brian Pietrylo and Doreen Marino v. Hillstone Restaurant Group D/B/A Houston’s [2009 WL 3128420 (D.N.J. 2009)], referenced and reinforced federal and New Jersey laws that prohibit employers from pressuring workers for access to their social media accounts,” Paranac explains. “So the pending legislation is somewhat redundant. But it does balance an employee’s right to privacy with the leeway that employers need in hiring”

If the bill is signed into law, any company with an employment policy that addresses social media activity should still consider working with its legal advisers to review its rules, he suggests.

“Also, if you don’t have a social media hiring policy in place, you might consider speaking with your legal advisers before structuring and implementing one,” Paranac counsels. “The National Labor Relations Board and now state legislatures appear to be stepping up their efforts to restrict employers’ investigation of employees’ social media use, so this is likely to become an even greater area of concern for companies.”

About LeClairRyan

LeClairRyan provides business counsel and client representation in corporate law and litigation. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit http://www.leclairryan.com.
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Press Contacts: At Parness & Associates Public Relations, Marty Gitlin (631) 765-8519, mgitlin(at)parnesspr(dot)com or Bill Parness, (732) 290-0121, bparness(at)parnesspr(dot)com

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Bill Parness
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