New Jersey employees had reason to rejoice this summer, as the New Jersey legislature passed two pieces of legislation on August 27th that strengthens employee privacy and prohibit certain types of discrimination based on private matters.
The first is a measure to provide employees who inquire about pay inequities, or share pay information about they’re compensation with fellow employees, protection from retaliation from employment. The New Jersey law adds further protection to rights which were already protected by the National Labor Relations Act (“NLRA”), a federal law that ensures workers have the ability to organize and/or unionize to protect themselves. The NLRA ensures employees have the right to “engage in concerted activies.” The law protects a broad range of activities, and makes it unlawful for an employer to discriminate or retaliate against an employee for discussing issues relating to workplace conditions, include wages.
The New Jersey Law, signed by Gov. Christie on August 30, 2013, has a similar anti-retaliation measure protecting employees from discrimination and reprisal if their employer discovers they had been asking co-workers or former colleagues about their job title, occupational category, or compensation. By allowing employees to freely discuss their wages and benefits without fear of repercussion, the bill aims to secure pay equity and protect against gender or race discrimination in pay.
The law was incorporated into New Jersey’s Law Against Discrimination, and took effect immediately after being signed. While the measure has yet to be tested in court, the law creates a cause of action for an employee in New Jersey who is discriminated against or retaliated against for discussing his or her wages with a coworker.
The second law regards the privacy of employees on the web. It prohibits employers from asking for the social media passwords and usernames of their employees. This makes New Jersey the latest state to prevent discrimination against employees on the basis of their social media accounts. However, the law stopped short of prohibiting employers from using information in an employee’s social media account in disciplinary and termination decisions. Rather, an employer may not ask an employee for their username and password, and an employee may not be disciplined for refusing to give same.
This law, which will be effective as of December 1, 2013, has been a long time coming. Previously, only universities and colleges were barred from asking for the passwords of their students and applicants. The current social media law made its way through both chambers of the New Jersey legislature, only to be conditionally vetoed by Gov. Christie. The Governor objected to language that would have allowed private court actions over alleged violations and other language preventing employers from requesting or requiring workers to reveal whether they have a social media account. The legislature agreed to the governor’s changes, and the law was signed on August 29, 2013.
Swartz Swidler, LLC is a New Jersey based employment law firm which represents employees throughout the state of New Jersey and beyond. If you believe you have been discriminated against unlawfully in your employment, please call one of our New Jersey employment attorneys today.
The changes to the original bill means that an employee cannot bring a private his or her own lawsuit asserting a violation of the law directly. However, an employee may be able to assert that his or her refusal to give his or her social media account information to the employer constitutes a protected activity under the states whistleblower protection law, the Conscientious Employee Protection Act (“CEPA”). Under CEPA, a New Jersey employee may oppose any unlawful conduct without fear of retaliation. Because the new law outlaws the practice of employers seeking user names and passwords to social media accounts, an employee who refuses to provide same may be able to contend that he or she was opposing unlawful conduct, which is protected by law. That legal theory, however, has not yet had the opportunity to be tested in the Courts. Even if a CEPA claim was denied, employer who violated the law may still have to answer to New Jersey’s Department of Labor and Workforce Development, which has enforcement authority over the new employee privacy law and the ability to assess civil penalties of $1,000 for a first violation and up to $2,500 for subsequent violations of the social media law.
