NJ Employment Attorney
The law in New Jersey governing employee privacy in general derives both from statute and case law. In the New Jersey case of Hennessey v. Coastal Eagle Point Co., the court recognized two potential sources of an employee’s right to privacy in the workplace, independent of search-and-seizure protection: Article I, paragraph 1 of the New Jersey Constitution, and the common law tort of intrusion on seclusion. The Hennessey court also established that “more is needed than simply the breach of public policy affecting a single person’s right to constitute a breach of a ‘clear mandate’ of public policy…” Courts in New Jersey engage in a balancing test, weighing the employee’s individual right against the competing public interest.
Drug Testing
An instructive New Jersey case explaining an employee’s reasonable expectation of privacy with regards to drug testing is Vargo v. National Exchange Carriers Ass’n, Inc., where the court held that a temporary employee, who submitted to a drug test a condition for obtaining a permanent position with his employer, had no reasonable expectation of privacy with regard to the drug testing and, thus, could not maintain a claim against his employer for invasion of privacy. The court looked at several factors to come to this conclusion:
- The employer had a long-standing drug-free workplace policy and preemployment drug screening for all applicants for permanent positions;
- The employee knew of this policy when he signed the “Terms and Conditions of Employment” on his employment application; and
- The employee voluntarily informed an HR employee of the medications he was talking and voluntarily submitted to non-intrusive drug test in a private bathroom
The Wiretap Act
The New Jersey Wiretapping and Electronic Surveillance Contract Act (“The Wiretap Act”) prohibits the unauthorized access to and interception of any wire, electronic or oral communications by co-workers. However, New Jersey is a one-party consent state, which means it is legal for one party to a conversation to record the conversation, even without the other party’s consent or knowledge. Most telephone conversations in the workplace fall within the exception allowing telephone recordings:
- In the normal course of business; or
- That are necessary for either business purposes or to protect the employer’s rights or property
With this exception in mind, employees should be cognizant of what they say and who they say it to in the workplace. Everything you say can be used against you.
E-mails and internet usage are two areas where employee privacy is most likely to be intruded upon. In New Jersey, emails between you and your attorney that are delivered through a personal, password-protected web-based email account on an employer-provided computer are private and protected by attorney-client privilege. However, courts in New Jersey have determined that employees have no reasonable expectation of privacy in personal information stored on a workplace computer or internet browsing history on a company computer.
The Social Media Act
The New Jersey Social Media Privacy Law (“The Social Media Act”) protects a person’s private social media posts from unauthorized access by employers and others. Employers are prohibited from requiring or requesting that current or prospective employees provide a username or password or any other means of access to their personal social media accounts. However, an employee’s private social media posts are not off limits from discovery requests. The Social Media Act does not apply to social media accounts maintained or used by a current or prospective employee for purposes related to the employer’s business. Employers are also prohibited from retaliating or discriminating against individuals who refuse to disclose a user name or password or any other means of access to their personal social media accounts.
Genetic Privacy Act
New Jersey’s Genetic Privacy Act (“The Genetic Privacy Act”) declares that a person’s genetic information is private property and cannot be collected, retained, or disclosed without written consent. A person may not disclose or be compelled to disclose the identity of the individual receiving genetic tests, or genetic information about the individual that permits identification of the individual, except in certain circumstances. This ties in with the LAD, as employers cannot refuse to hire anyone who declines to take a genetic test.
Identity Theft Prevention Act
New Jersey’s Identity Theft Prevention Act (“The Identity Theft Prevention Act”) prohibits employers from:
- Publicly posting or displaying an individual’s social security number (“SSN”) or four or more consecutive numbers of the individual’s SSN;
- Printing an individual’s SSN on any materials mailed to the individual, unless required by law;
- Intentionally releasing or otherwise making available to the general public an individual’s SSN
- Requiring an individual to send their SSN electronically, unless the internet connection is secure, or the SSN is encrypted; and
- Requiring an individual to use their SSN to access an internet website, unless one of the following is also required for access a password, a unique person identification number or another authentication device
Employers must also destroy all paper or electronic records containing personal information when they no longer need to be retained. Personal information includes an individual’s first name/initial and last name linked with his or her SSN, driver’s license number, or credit or debit account number with any required code or password that permits access to an individual’s financial account.