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New Jersey is expected to shortly join California, Illinois, Maryland, Michigan, and Utah in prohibiting employers from seeking employee or applicant passwords to social media accounts or services. New Jersey’s law is more pro-employee/applicant than any such law enacted to date, providing the broadest protections, the narrowest exceptions, and the most generous remedies. The bill apparently would prohibit an employer from asking an employee who complains about the social media activity of a coworker, such as online sexual harassment, for access to the complaining employee’s personal social media account to observe what the alleged harasser posted. Moreover, unlike similar laws, the New Jersey bill contains no exception for workplace investigation into suspected unlawful conduct or violations of employer policies. The New Jersey bill also has the most generous remedial scheme. It confers a private right of action on applicants or employees to recover unlimited compensatory and consequential damages. Before investigating information present on an employee’s or applicant’s “personal account,” HR professionals are encouraged to seek guidance from inside or outside counsel to ensure compliance with this proposed law.

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