A-2878, referred to as the “Facebook bill,” would prohibit employers from asking for certain social networking information from employees and prospective employees. The bill’s intention to protect employees’ privacy is laudable; however, a provision in Section 5 of the legislation creates an unnecessary hardship for New Jersey’s business community and may place an additional strain on our court system. This section would create a new opportunity for current, former, and prospective employees to sue New Jersey businesses.
Under this provision, employers or businesses who seek to hire an employee to administer their company’s social media communications would risk a lawsuit if they ask a prospective employee about his or her social media experience. An unqualified job applicant would be given the right to seek monetary compensation if social networking was raised even in casual context during the interview process or later as an employee. New Jersey would be the only state in which an employee or prospective employee would have such leverage, contributing to a hostile business climate in which unemployment outpaces the national average. Even if an employer is found to have committed no violation of this act, time and capital will be needed for a defense. Small businesses would be hurt most by litigation, as it can take up to $70,000 to resolve even the most clearly meritless cases.
As New Jersey seeks to rebuild after the events of Hurricane Sandy, it is critical that we do not impose unintended disadvantages on our state’s economic backbone. California, Maryland and Illinois have taken steps to protect employees’ privacy without exposing their business community to new and expensive liability in addition to penalties. Please urge legislators to consider amending or removing Section 5.