As previously discussed, in the absence of a written employment agreement, New Jersey employers generally have the right to terminate an employee for any reason. New Jersey follows an “at-will” employment relationship. This general rule applies to social media; employers can discipline and terminate an employee under current NJ social laws and case law. However, there are some exceptions to this rule.
What Employers Cannot Do
New Jersey prohibits employers from requiring or requesting that current or prospective employees provide their username, password, or other means of accessing their social media “personal accounts,” such as Facebook, Instagram, Twitter, or LinkedIn. A personal account is an account that the employee or applicant uses exclusively for personal communications unrelated to their employment. This law does not explicitly address accounts created by or used by employees to the employer’s business or how the statute applies to personal accounts used for both personal and business purposes. It’s probable there is limited or no exemption from disclosure to the employer with a hybrid social media personal account.
Employers are also prohibited from:
- Requiring individuals to waive their rights under the Social Media Act as a condition of either applying for employment or receiving a job offer. An agreement to waive any right or protection under the Social Media Act is unenforceable. (N.J.S.A. 34:6B-7.)
- Retaliating or discriminating against individuals who exercise their rights under the Act (N.J.S.A. 34:6B-8).
What Employers Can Do
The NJ Social Media Act does not:
- Prohibit employers from accessing or using information about a current or prospective employee obtained in the public domain (N.J.S.A. 34:6B-10(d)).
- Restrict an employee’s access, viewing, and action in response to social media accounts created, maintained, used, or accessed by a current or prospective employee for purposes related to the employer’s business (N.J.S.A. 34:6B-5).
- Prohibit employers who have received specific information about the employee’s use of the employer’s social media account from accessing information to investigate:
- a violation of the law;
- employee misconduct; or
- The improper transfer of confidential information or financial data.
Additionally, the statute does not prohibit employers from viewing, accessing, or using information about a current or prospective employee that is in the public domain.
If a social media post by an employee does not involve protected activities such as discussing wages, organizing a union, reporting an unlawful employment practice, or a public-interest issue, or reporting workplace discrimination of any kind, an employer may still have the right to terminate the employee. New Jersey does have laws in place that read as if they protect employees’ rights to free speech, but these protections generally (I believe almost always) seem not to apply to social media posts made outside of work hours and on personal accounts. Employers have become, in many cases, the social media police. Amazing but true.
What criteria are applied to determine if a social media posting is protected or not? The answer is that each case is unique, and outcomes will depend on factors such as the words used in the comment, the employer’s social media policy (if any), and any existing employment contracts. Additionally, certain industries regulated by federal or state laws may impose additional restrictions on social media use that could affect an employee’s job security.
Employers may not, however, retaliate against an employee or applicant for refusing to provide usernames and passwords.
Employees beware!!! Accessing your social media accounts on your employer’s internet and/or computer may open you up to discipline and/or termination of employment. In these times of restricted free speech in corporate America, especially with government employers, extreme caution is recommended, especially if you give your employer access to your private account information. Be especially careful (to the point of self-censure) before you post any opinions, photographs, and even reposted articles from sources deemed to be conservative, liberal, or extreme. Employers in states like New Jersey can and have fired employees for personal opinions expressed outside the workplace.
Dealing with an issue involving a threatened or effectuated office search that impacts you, then please contact Fredrick P. Niemann at (732) 863-9900 or e-mail him at fniemann@hnlawfirm.com. He welcomes your inquiry, and you will find him and his staff easy to talk to.
Fredrick P. Niemann Esq.