No matter your age or your occupation, if you spend any time using a computer or other electronic device there’s a good chance that you are also using some type of social media. Social media platforms allow individuals to connect and network with one another. Their focus can range from advancing careers to finding a partner, and though many have dramatically and positively changed the way that organizations do business, others have opened an entirely new legal landscape that affects employee privacy, as well as issues of harassment and discrimination.
There are significant differences between an employer’s right to control social media use when employees are speaking as a representative of their organization versus when they are posting from their personal devices without identifying themselves as an employee. It is important to understand what those differences are, and what rights employers have when it comes to personal social media accounts.
Employers are well within their rights to impose rules or create controls or monitors to limit the amount of time that employees access the internet or social media while at work or using company equipment. Steps that are intended to optimize productivity, protect proprietary information or guard against data breaches or other improper activities are straightforward and permissible. Likewise, employers are within their rights to access employee information and potential employee information that is in the public domain, and even to act upon it. However, the state of New Jersey and several other states have recognized that many employers were imposing undue pressure on employees, or violating their privacy rights, with reference to their social media accounts. In 2013 the New Jersey state legislature passed a law to protect against this type of activity.
New Jersey Statute N.J.S.A. 34:6B-5, et seq.,specifically prohibits employers from requiring either current employees or prospective employees to provide the user-names or passwords to their personal social media accounts, or to in any other way force them to provide access to those accounts. Employers who violate this law will be subject to liability and fines if they either fire an existing employee or refuse to hire a prospective employee because they refused to provide this information or access. The law also specifically prohibits employers from requiring employees or prospective employees to waive these protections, and makes any such waiver unenforceable.
Though these laws create significant protections for employees, they still allow the employer control over employees’ use of social media in certain circumstances. For example, if the employer provides the employee with a social media account specifically for business purposes, the prohibition against asking for a password or access does not apply. Similarly, if an employer learns that an employee is engaging in some kind of misconduct online (such as revealing proprietary or confidential information about the company,) employers are permitted to conduct an investigation and act upon what they find.
Employees or potential employees who believe that their rights under this law have been violated are not permitted to file a personal injury lawsuit against their employer: Rather they are to file a claim with the Commissioner of Labor and Workforce Development seeking enforcement of the law. Doing so will spur an investigation that can lead to the imposition of a civil penalty of up to $1,000 for a first offense and $2,500 for each subsequent offense.
Beyond these protections, employees are vulnerable to employers taking action against them over social media activity that is in the public domain. The one major exception to this rule is where the postings are seen as being protected by the employee’s right to unionize or take action against unfair labor practices. Beyond that exception, because most employees are considered “at will,” employers are generally permitted to terminate or suspend employment, or to choose not to hire a prospective employee, for any reason as long as it is not discriminatory. This means that if you have posted a comment that your employer believes is inappropriate or that reflects badly on them or their organization, they have the right to take action against you.
It is important to note that if an employer has a social media policy in place that they enforce unevenly, and you suspect that the enforcement is a reflection of a discriminatory practice, then that may be illegal under the New Jersey Law Against Discrimination.
Social media has extended our ability to connect with one another, but at the same time it provides employers with a window into our private thoughts and expressions. Though employers are not permitted to force employees to provide them with access to their private accounts, there is no prohibition from them accessing information that is in the public domain and acting upon it. Be smart in your social media use, and if you believe that your rights have been violated contact the NJ employment attorneys at Schorr and Associates today.