September 9, 2013
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To obtain a complete copy of the Capitol Report and/or retrieve a former Capitol Report, please visit our website at www.njsba.com.
EVIDENCE RULE HEARING
On Sept. 3, the Judiciary convened a judicial conference at the New Jersey Law Center to consider proposed amendments to the Rules of Evidence, specifically Rule 609 governing the use of prior convictions to impeach the credibility of a witness. Ingrid L. Yurchenco, chair-elect of the New Jersey State Bar Association’s Criminal Law Section, spoke on behalf of the NJSBA in support of the rule amendments. The amendments were recommended by the Supreme Court Committee on the Rules of Evidence, following a request from the Supreme Court, in State v. Harris, 209 NJ 431, 445 (2012), that the committee examine the rule. The proposed changes deal with the use of prior evidence after a period of 10 years or more has passed since the date of conviction or release from confinement, whichever is longer. In such instances, the evidence is only admissible if a judge determines its probative value exceeds its prejudicial effect. Also appearing were representatives from the New Jersey Office of the Public Defender in support and the New Jersey Prosecutor’s Association in opposition.
On Aug. 29, 2013, the governor signed the following bill supported by the NJSBA:
A-2878 (Burzichelli)/S-1915 (Sweeney)/ S-1898 (O’Toole) Prohibits requirements to disclose user name, password or other means for accessing an account or services through an electronic communications device by employees. The governor originally conditionally vetoed the bill, expressing appreciation for the sponsors’ earnest effort to safeguard the privacy of job candidates and employees from overly aggressive invasions by employers. He noted those privacy concerns must be balanced against an employer’s need to hire appropriate personnel, manage its operations, and safeguard its business assets and proprietary information.
The NJSBA believed the bill painted with too broad a brush. For example, under the original bill, an employer interviewing a candidate for a marketing job would be prohibited from asking about the candidate’s use of social networking in order to gauge the candidate’s technological skills and media savvy. Such a relevant and innocuous inquiry would subject an employer to protracted litigation, compensatory damages, and attorneys’ fees—a result that could not have been the sponsors’ intent. The present legislation, which incorporates the governor’s recommended amendments, achieves better balance between protecting the privacy of employees and job candidates, while ensuring employers may appropriately screen job candidates, manage their personnel, and protect their business assets and proprietary information.
On Aug. 19, 2013, the amended bill passed in the Senate (36-0) in concurrence with the recommendations contained within the governor’s conditional veto and was sent to the governor. On Aug. 29, 2013, the governor signed the bill into law.
The NJSBA Board of Trustees and Labor and Employer Law Section voted to support this amended legislation because it believes it is necessary to protect the privacy rights of all employees in an emerging technologically connected era. Employees’ personal social network accounts contain personal information an employer is prohibited from asking about (i.e., marital status, religion, sexual orientation, etc.). Gaining access to this information through social media accounts could lead to discriminatory decisions during the hiring process. Additionally, this bill protects employees’ rights in the current job market. It ensures employees are not put in an unfair situation, such as being forced to give up their privacy rights in return for a certain job.
The Legislature has acknowledged that privacy rights have been eroded due to a lack of protection in the emerging technological age. The NJSBA believes it is imperative that employees maintain a right to privacy in their personal social networking accounts and are afforded the proper protection to ensure their privacy.
CHAPTER BILLS SIGNED INTO LAW
P.L.2013,c.138 Establishes the crime of entering into certain restricted airport areas. On Aug. 14, 2013, the governor signed this bill into law. (A-606 Spencer)
P.L.2013, c.139. Allows persons with diabetes to voluntarily make a notation on their driver’s license. On Aug. 14, 2013, the governor signed this bill into law. (A-945 Riley)
P.L.2013, c.140. Requires that certain HIV testing be performed within 48 hours of a request from a victim. On Aug. 14, 2013, the governor signed this bill into law. (A-3760 Oliver)
P.L.2013, c.141 Creates Nikki’s Law, requires the Department of Transportation commissioner to erect signs and use variable message signs to inform motorists of state law prohibiting texting while driving. On Aug. 14, 2013, the governor signed this bill into law. (A-3873 Wisniewski)
ATTORNEY VOLUNTEERS NEEDED
The New Jersey State Bar Association’s Military Legal Assistance Program provides free legal advice to veterans who encounter legal issues before their deployment or upon their return home. Members of the military who have served in active duty or in the reserve units can receive assistance with family law, debtor-creditor issues and employment law matters.
Any attorney who annually volunteers 25 or more hours of pro bono service can earn a Madden exemption. To find out more, visit the New Jersey State Bar Association’s website at www.njsba.com.