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Ask the Attorney: Can I Still Do Online Searches About Potential Employees?

There is nothing unlawful about searching for information your current or prospective employee puts in the public domain but be careful.

Dear Ask the Attorney:

I know that Governor Christie just signed a law which prohibits asking potential employees for their Facebook or Linked In or other social media login information.  As a Morris County business owner, we have always vetted our potential employees.  However, does this mean that I cannot do an online search about these potential employees?  What happens if their Facebook page comes up and it isn’t made private?

B.G.

Our guest blogger is Timothy J. Ford, Esq.,  an associate with the firm of Einhorn Harris Ascher Barbarito & Frost, P.C.   Tim practices in the closely held business group concentrating on working on employment law, general and commercial litigation, and working with owners/managers of assisted living facilities.

Dear B.G: 

Governor Christie recently signed legislation barring employers from requiring or requesting prospective or current employees to provide the employer access to an account or social networking website.  The legislation, which was signed into law on December 7, 2012, limits what an employer can request in order to access social networking profiles.  Violations may result in fines, damages and attorneys’ fees for an employee who successfully sues under this new law.  The law also precludes employers from retaliating against employees who refuse to provide usernames and passwords.

This legislation does not bar employers from searching for social networking profiles.   However, it may lead to other problems.  For example, it may expose an employer to claims for discrimination.  By viewing an employee’s Facebook profile, you may discover that your current or prospective employee is a member of a protected class.  That fact may put an employer on notice of the employee’s membership in a protected class that the employer may not have otherwise known.  That, coupled with an adverse employment action such as a suspension, termination or even less severe discipline, may expose employers to discrimination lawsuits or claims with the New Jersey Division on Civil Rights and/or EEOC.

Information that prospective and current employees include on social networking websites is public.  Even if an employee designates his or her profile to be private, that designation does not have much legal significance.  For many reasons, a simple search of a prospective or current employee is practical.  Frequently, this arises when an employee is disparaging or defaming the employer on the internet.  There is nothing unlawful about searching for information your current or prospective employee puts in the public domain.  However, in this domain, there is no such thing as now you see it, now you don’t.

Employers must be current on the myriad of employment laws.  These laws frequently change.  Employers should consult with an experienced employment lawyer to make sure that its practices conform to the law and do not expose them to liability.

“Ask the Attorney” is a blog in which answers to your legal questions submitted to asktheattorney@einhornharris.com may be answered. The answers to the questions are for informational purposes only and are not to be construed as legal advice or the creation of an attorney-client relationship. The facts of each case is different, therefore you should seek competent legal representation.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Evan Shenkman December 24, 2012 at 04:18 PM
Governor Christie did NOT sign that legislation (A2878) into law. What Governor Christie DID sign on December 7 was A2879/S1916 (Prohibits requirement that applicants for admission to higher education disclose user name, password, or other means for accessing account or service through electronic communications devises), an entirely different bill NOT directed at employers. My records show that A2878, the legislation to which you were referring, still has not reached the Governor’s desk.
Hookerman December 24, 2012 at 08:55 PM
"There is nothing unlawful about searching for information your current or prospective employee puts in the public domain." Exactly why I always blog anonymously.
Timothy December 27, 2012 at 08:47 PM
Mr. Shenkman is correct. Early last week many news outlets reported that this legislation regarding employers HAD passed. Then, after seeing this comment from Mr. Shenkman, we discovered that these websites had printed retractions. Thank you for clarifying this. I apologize for the error as this legislation as it applies to employers is still pending. It is my understanding that it is expected to be signed by the Governor.

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