Top New Jersey Legal Developments: Trends In New Jersey Employment Law – 2013 Year In Review

2013 was a busy year for employment law in New Jersey. This newsletter summarizes noteworthy developments in ten key areas—social media, the Law Against Discrimination ("LAD"), whistleblowing, background checks, drug and alcohol policies, employee leave, arbitration, non-competes, wage & hour, and Title VII of the Civil Rights Act of 1964 ("Title VII").

Social Media

Statutory Developments

New Jersey has a new law that forbids employers from requiring or requesting that prospective or current employees disclose user names and passwords to their personal social media accounts. The law also provides employees with expansive protections against retaliation. An employer may not require employees to waive their rights under the statute.

Despite these prohibitions, an employer may:

implement and enforce a policy pertaining to the use of employer-issued communications devices, accounts or services used for work-related purposes; conduct an investigation based on the receipt of specific information about activity on an employee's personal social media account (1) to ensure compliance with laws, regulations or prohibitions on work-related misconduct, or (2) to prevent the employee's unauthorized transfer of the employer's proprietary/confidential or financial information; or access, view or utilize information about a current or prospective employee in the public domain, as well as otherwise comply with existing statutes, regulations, rules, or case law. The new law does not provide a private right of action; rather, for non-compliance, an employer is subject to a modest fine of no more than $2,500. Nevertheless, there is concern that employers which engage in the type of conduct the new law prohibits may violate common law privacy rights or the Conscientious Employee Protection Act ("CEPA") and incur damages in court.

Employers doing business across the country should note that 11 other states have granted similar social media protections by statute. For more information on the New Jersey law and this emerging national trend, please see our client alert.

Judicial Developments

A recent federal case highlights other possible forms of liability for New Jersey employers who access or monitor the personal social media accounts of their applicants or employees. In Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (WMJ), 2013 WL 4436539 (D.N.J. Aug. 20, 2013), an employer (defendant) suspended an employee (plaintiff) for posting offensive comments on her Facebook page. The defendant learned of the post from another employee who was one of the plaintiff's Facebook friends. The plaintiff filed suit, alleging violations of her common law privacy rights and the Stored Communications Act ("SCA"), a federal law that protects against the unauthorized disclosure of electronic communications.

The court granted summary judgment on the common law privacy claim, reasoning that, because the co-worker "voluntarily" disclosed the post, the defendant did not intentionally intrude upon the plaintiff's personal affairs. Moreover, although the court held that the SCA protects non-public Facebook posts, it dismissed the SCA claim, invoking the "authorized user" exception given that the plaintiff granted access to her co-worker who, in turn, freely divulged the post.

LAD

Pay Equity Amendment

New Jersey amended the LAD to include a non-retaliation pay equity provision to protect employees who discuss compensation with one another. Under the amendment, an employer may not retaliate against an...