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Employers Publishing Job Ads Beware

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Earlier this week, the New Jersey Appellate Division upheld the constitutionality of a New Jersey law forbidding companies from discriminating against unemployed job candidates. 

N.J.S.A. 34:8B-1 prohibits employers from publishing an advertisement stating that a job applicant must be currently employed for their applications to be accepted, considered, or reviewed. The law was passed in 2011 during the economic downturn when laid off workers were seeking jobs and faced additional roadblocks when they found that companies would not consider their applications if they were unemployed.

The law was challenged in New Jersey Department of Labor and Workforce Development v. Crest Ultrasonics, 2014 WL 43989 (N.J. Super. Ct. App. Div. Jan. 7, 2014), which involved a New Jersey company that published a newspaper advertisement stating in part that the applicant “must be currently employed.”  Id., at *2.  The company was fined by the Department of Labor and Workforce Development for publishing an advertisement containing language prohibited by N.J.S.A. 34:8B-1.  2014 WL 43989, at *1.  In contesting that fine, the company claimed that N.J.S.A. 34:8B-1 unlawfully infringed upon their free speech rights, in violation of the First Amendment.  2014 WL 43989, at *1.

The appellate court rejected the company’s constitutional challenge.  The court found the law “narrowly tailored to advance a limited, but nevertheless substantial, governmental objective in maximizing the opportunities for unemployed workers to have their qualifications presented to prospective employers.”  Id.  The court noted that “employers are simply obligated to ‘refrain from excluding unemployed workers in job advertising,’ but may still ‘advertise job openings in the manner they desire, and ultimately they can select who they want for the job.’”  Id., at 11.  The court also noted that the law does not prohibit employers from stating in an advertisement that they will only accept applications from candidates who are currently employed by them in another position than that being advertised.  Id.

Although N.J.S.A. 34:8B-1 does not allow job applicants to sue for its violation, employers nevertheless could face significant fines for noncompliance.  The fines include up to $1,000 for the first violation, up to $5,000 for the second violation, and up to $10,000 for each subsequent violation.  N.J.S.A. 34:8B-2.  Employers should review their job advertisement carefully prior to publication to ensure that they comply with N.J.S.A. 34:8B-1 and other laws dealing with discrimination.