Plenty of reasons not to like proposed Facebook legislation

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A so-called Facebook bill that’s being considered by the Legislature is supposed to enhance the privacy of job applicants, but as a labor and employment lawyer, I’m concerned that it’s more likely to reduce hiring in New Jersey.

The proposed legislation (A-2878) would prevent employers from requiring, or even asking, a current or prospective employee to reveal their Twitter, Facebook or other user name or password. It would also ban an employer from requesting access to their personal account or service through an electronic communications device. Given that social media has become a major communications channel between individuals, it’s easy to understand why legislators don’t want people to be coerced into turning over a “key” to their personal thoughts, especially if they’re not likely to have a direct impact on the person’s job responsibilities. But what happens if there is a legitimate tie-in between a job applicant’s social media sites and the job they hope to get?

It’s not far-fetched, especially if they’re applying for a marketing or other position that increasingly uses social media. In that case, checking their social media account is simply part of the process to see if the job candidate’s skills match up with the position. And civil liberties advocates don’t have to worry about employer abuse, since New Jersey federal court cases, including Brian Pietrylo and Doreen Marino v. Hillstone Restaurant Group D/B/A Houston’s, have already established and reinforced laws that prohibit employers from unduly pressuring workers for access to their social media accounts.

But the current proposal would bar an employer from even asking for that information, which would simply place one more obstacle in the hiring process. Do we really want to do that, especially when recent federal Department of Labor statistics indicate that New Jersey’s 9.6 percent jobless rate is already higher than the national average of less than 8 percent?

As a shareholder in a national law firm, I speak with businesses across the U.S. on a regular basis, and have a pretty good idea about what worries them; and about their thinking process when it comes to opening up new locations or expanding existing ones. Although passage of the so-called Facebook bill isn’t likely to drive existing businesses out of the state, it could easily tip the balance the wrong way for companies that are thinking of relocating or expanding here.

When it comes to doing business in New Jersey, the state has a lot going for it: an educated work force, relatively easy access to air, road and rail service, and of course, close proximity to major markets like New York. But New Jersey also has some critical negatives, including high property taxes and an activist Legislature that’s already tried to ram through some anti-business measures, including a proposed hike in the minimum wage that was fortunately vetoed by Gov. Chris Christie.

So in a state that already has effective laws to protect workers’ social media rights, one has to wonder why the Legislature would want to add burdensome, redundant regulations that could drive away new hires; especially when the state’s unemployment rate is already too high.

Joseph P. Paranac Jr.
LeClairRyan
Newark