Privacy concerns have to be balanced against "an employer’s need to hire appropriate personnel, manage its operations, and safeguard its business assets and proprietary information," he said Monday in his veto statement.
In his view, A-2878 was well-intentioned but painted "with too broad a brush." For example, a company interviewing for a marketing job would not be able to ask about applicants’ use of social networking "so as to gauge the candidate’s technological skills and media savvy," Christie wrote.
"Such a relevant and innocuous inquiry would, under this bill, subject an employer to protracted litigation, compensatory damages, and attorneys’ fees — a result that could not have been the sponsors’ intent," he added.
Christie recommended eliminating provisions that allow employees to sue for violations of the law and that bar employers from asking about the existence of social media accounts.
A-2878 authorizes prospective and current employees to sue for injunctive relief, compensatory and consequential damages and attorney fees and costs.
Christie would strike that part of the bill while leaving intact civil penalties of $1,000 for a first violation and $2,500 thereafter that could be collected by the Department of Labor in a summary proceeding.
In addition, he wants legislators to add an exception allowing employers to investigate work-related employee misconduct or the unauthorized transfer of confidential or proprietary company data to a personal account.
In either situation, the employer would have to act based on specific information about such activity by the employee.
Another exception sought by Christie states, "Nothing in this act shall prevent an employer from viewing, accessing, or utilizing information about a current or prospective employee that can be obtained in the public domain."
Those exceptions would join those already in A-2878 that say the law shall not prevent employers from complying with state and federal law or adopting and enforcing company policy on using "employer-issued electronic communications devices or any accounts or services provided by the employer or that the employee uses for business purposes."
According to the Office of Legislative Services, a revised version of the bill, containing Christie’s changes, was sent to the Assembly on Monday, which has yet to vote on it.
Leading sponsors in both houses — Assemblyman John Burzichelli, D-Gloucester, and Senate President Stephen Sweeney, D-Gloucester — did not return a call about the prospects of passage with Christie’s changes or the possibility of a veto override.
The bill passed the Assembly in a 75-2 vote and the Senate in a 38-0 vote.
It was introduced on May 10, 2012, with a companion bill, A-2879, that imposed similar restrictions on institutions of higher education regarding social media accounts of students and applicants.
An accompanying press release noted growing reports of business and colleges demanding Facebook passwords and usernames and quoted Burzichelli calling such demands "a huge invasion of privacy that takes ‘Big Brother’ to a whole new level" and "no different from asking someone to turn over a key to their house."
Neither bill in its original form contained any exceptions. A-2879 passed without oppposition and was signed on Dec. 3, with the right to sue intact. It took effect immediately.
Exceptions were added to A-2878 at various points and on Sept. 20, 2012, the Senate Labor Committee approved it, rejecting a move by business groups to strip out the lawsuit language.
Claudia Reis, president of the New Jersey chapter of the National Employment Lawyers Association, says removing the power to sue would leave the law toothless.
Violations must carry some repercussion, such as the threat of a lawsuit, says Reis, of Green Savits & Lenzo in Morristown.
She compares removing the provision with setting speed limits without allowing police to ticket speeders.
On the other hand, Jed Marcus, president of the Academy of New Jersey Management Attorneys, says Christie’s changes would create "a more balanced approach reflecting the legitimate needs of employers as well as the privacy concerns of the employee."
Most employers aren’t demanding to see social websites because it is too time-consuming, says Marcus, of Bressler Amery & Ross in Florham Park, but he acknowledges they are more likely to do so in the hiring context.
He adds that employees need to take responsibility for what they post on the Internet.
If the bill is enacted without giving employees a right of action, they will not necessarily be left without recourse in the event an employer gains access to personal media accounts without their consent.
In 2009, a federal jury awarded $3,400 in back pay and $13,600 in punitive damages to employees of a restaurant that monitored their MySpace postings. The jurors found violations of the federal Stored Communications Act and New Jersey’s Wiretapping and Electronic Surveillance Control Act in Pietrylo v. Hillstone Restaurant Group, 06-cv-5754.
Seven states have enacted laws that restrict employer access to workers’ social media accounts.
The most recent was Arkansas on April 22.
The others are California, Illinois, Maryland, Michigan, New Mexico and Utah.
Mary Pat Gallagher is a reporter for the New Jersey Law Journal, a Legal affiliate.
New Jersey Governor Chris Christie has conditionally vetoed a bill that would bar employers from demanding social media IDs from employees and applicants