Balancing Privacy Rights and Corporate Interests in the Internet Age: Barring Employers from Accessing Employees’ Social Media Passwords

A law recently passed by the New Jersey State Legislature prevents employers from demanding social network usernames and passwords from employees and job applicants.

Websites such as Facebook and Twitter allow individuals to share their personal lives, interests, and thoughts with a wide audience. Employers looking to gain more insight into job candidates’ behaviors are increasingly using social media sites to prescreen applicants.[1] In most cases, tech-savvy job seekers can block companies from seeing any potentially embarrassing information by limiting public access to their profiles. Undeterred, some employers have attempted to bypass these privacy settings by requiring access to applicants’ personal login information.[2]

Alarmed by this intrusive practice, sixteen states[3] passed bills prohibiting such demands.[4] Riding a wave of strong public support,[5] over twenty more states have similar bills advancing in their own legislatures.[6]

New Jersey recently decided to follow suit. The state passed a law in December 2012 barring institutes of higher education from requiring students to provide their social media passwords.[7] Three months later, another bill preventing employers from doing the same (Assembly Bill No. 2878) was passed by a combined 113-2 vote in the State Senate and General Assembly.[8] Despite near unanimous support for the measure, Governor Chris Christie issued a conditional veto.[9]

In a letter to the General Assembly, the Governor expressed concerns about how the pending law would affect the delicate balance between individual rights and employer autonomy.[10] For instance, the bill forbade employers not just from requesting personal login information but also from asking whether a potential employee had a social media account at all.[11] Such a violation would have provided aggrieved employees with a civil cause of action that could open the door to tedious and expensive litigation for employers.[12] This potentially severe penalty could have limited the ability of employers to ask legitimate questions about a job applicant’s skills and familiarity with social networking.[13]

Governor Christie’s recommendations included removing this right to sue in favor of having employees report violations to the State Commissioner of Labor and Workforce Development.[14] The Governor also asked the Legislature to include a section allowing employers to comply with other applicable laws, enforce policies pertaining to social media accounts used for company business, and conduct investigations of employee misconduct without violating the bill.[15] Both the General Assembly and the Senate agreed to the proposed changes by unanimous vote on May 20 and August 19, respectively.[16] The Governor signed the bill into law nine days after Senate approval. [17]

The concerns raised by Governor Christie are indicative of the growing tension between individual privacy rights and corporate interests in the Internet Age. As New Jersey and other states take steps to maintain this careful balance, employers and employees alike should expect increased debate over what online personal information is fair game in the job applicant vetting process.



[1] 37 Percent Of Employers Use Facebook To Pre-Screen Applicants, New Study Says, Huffington Post (Apr. 20, 2012, 3:12 PM), http://www.huffingtonpost.com/2012/04/20/employers-use-facebook-to-pre-screen-applicants_n_1441289.html.

 

[2] Manuel Valdes, Job seekers getting asked for Facebook passwords, Yahoo! Finance (Mar. 20, 2012, 7:55 AM), http://finance.yahoo.com/news/job-seekers-getting-asked-facebook-080920368.html.

 

[3] See

Kathleen Haughney, Employers want your Facebook login? Lawmaker says ‘no,’ Orlando Sentinel (Oct. 6, 2013), http://articles.orlandosentinel.com/2013-10-06/news/fl-social-media-passwords-20131006_1_social-media-passwords-job-applicants-private-messages (“According to the National Conference of State Legislatures, 16 states in the last two years enacted similar legislation. Another eight have passed laws banning the practice at academic institutions.”).

 

[4] Phillip L. Gordon & Joon Hwang, Making Sense of the Complex Patchwork Created by Nearly One Dozen New Social Media Password Protection Laws, Bloomberg Law (last visited Oct. 22, 2013), http://about.bloomberglaw.com/practitioner-contributions/complex-patchwork-created-by-nearly-one-dozen-new-social-media-password-protection-laws/.

 

[5] 33% Think Employers Have Right to Fire Those Who Post Inappropriate Facebook Content, Rasmussen Reports (Mar. 12, 2012), http://www.rasmussenreports.com/public_content/business/jobs_employment/march_2012/33_think_employers_have_right_to_fire_those_who_post_inappropriate_facebook_content.

 

[6] Gordon and Hwang, supra note 4.

 

[7] Susan K. Livio, Christie signs bill barring employers from making job applicants hand over social media passwords, The Star-Ledger (Dec. 7, 2012, 7:42 PM), http://www.nj.com/news/index.ssf/2012/12/christie_signs_bill_barring_em.html.

 

[8] New Jersey State Legislature, http://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=A2878 (last visited Aug. 13, 2013).

[9] Aaron Kase, NJ Gov. Vetoes Employer Facebook Password Request Ban, Lawyers.com (May 10, 2013), http://blogs.lawyers.com/2013/05/nj-gov-vetoes-employer-password-request-ban/.

 

[10] Letter from Chris Christie, Governor of N.J., to the General Assembly of N.J., available at http://www.njleg.state.nj.us/2012/Bills/A3000/2878_V2.PDF.

 

[11] Id. at 1.

 

[12] Id. at 1-2.

 

[13] Id.

 

[14] Id. at 2.

 

[15] Id.

 

[16] New Jersey State Legislature, http://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=A2878 (last visited Sept. 23, 2013).

 

[17] Id.

Author: Steven Unterburger

Steve Unterburger is a Managing Articles Editor of the Rutgers Computer and Technology Law Journal. He graduated magna cum laude from The College of New Jersey in 2012 with a B.S. in Business Administration and a specialization in Management. As an undergraduate, Steve completed internships with Pop Warner Little Scholars, the New York Islanders, and the Walt Disney World Resort, where he worked as a batboy and clubhouse attendant for the Atlanta Braves during their 2011 Spring Training. During his time in law school, Steve has worked as a judicial intern for the Honorable Jamie S. Perri, J.S.C., and the Honorable Lois H. Goodman, U.S.M.J. In the summer of 2014, he interned in the Law Department of C.R. Bard, Inc., a large medical equipment manufacturing company. Steve is an avid sports fan and enjoys playing golf and tennis.

Leave a Reply

Your email address will not be published.