Written by David Katz
New Jersey’s Appellate Division last week upheld a 2011 statute (N.J.S.A. 34:8B-1) that bars employers seeking to fill job vacancies in New Jersey from knowingly publishing advertisements stating that job applicants must be currently employed in order for their applications to be considered. In New Jersey Dep’t of Labor & Workforce Development v. Crest Ultrasonics, the court rejected Crest Ultrasonics’ argument that the New Jersey law improperly infringes upon employers’ free speech rights under the First Amendment and the New Jersey Constitution.
Less than three months after the June 1, 2011 enactment of the statute, Crest Ultrasonics took out a simple advertisement in the classified section of a local newspaper to fill a service manager position. The ad (with the offending text in bold) read as follows:
65K-75K. Must be currently employed.
Technically competent. Customer Friendly
A concerned individual placed a call to the New Jersey Department of Labor and Workforce Development (the “Department”) about Crest Ultrasonics’ ad. The Department swiftly investigated resulting in a first offense statutory fine of $1,000. Fines increase to $10,000 for each violation after a second violation. Notably, there is no private right of action to bring a lawsuit under the statute, as all complaints are investigated through the Department.
Recognizing that the statute “was enacted during the midst of a national recession that indisputably caused a significant adverse impact upon the economy and the workforce in the State of New Jersey [and] that the bill became law in a context where unemployment levels in this State had been rising, businesses were widely downsizing, and new job opportunities were waning,” the court, applying the well-established test for evaluating content-based restrictions on commercial speech, held that the statute is 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. The court found that the “modest restrictions that the State has placed upon job advertising under the statute are constitutionally valid, even though employers might not consider or ultimately hire most of the unemployed applicants who respond to such job postings.”
In fact, the court acknowledged that the statute’s aim does “not pretend to do more” than “maximize the ability of jobless persons to simply present their qualifications to potential employers.” Realistic or not, the court surmised: “The inescapably clear premise of [the statute] is that, although employers may discard or ignore many resumes and applications that they receive from jobless applicants, undoubtedly some currently unemployed applicants will stand out. At least some of them, from time to time, will possess such impressive or well-suited credentials that they will receive a job offer despite an employer’s initial reluctance to consider unemployed applicants.”
As a practical matter, and as readily observed by the court, the statute has a limited application for New Jersey employers. The “need not apply” law simply places a restriction on the content of advertising. The statute is nowhere near as restrictive as recently enacted legislation in New York City and the District of Columbia, measures that not only ban “need not apply” advertising content, but go further and also make it illegal to refuse to hire or consider hiring a potential employee based upon his or her unemployed status. (We wrote about New York City’s new unemployment discrimination law, which took effect on June 11, 2013, here.)
Accordingly, the takeaway for employers doing business, or seeking employment candidates, in New Jersey, is that it is critical that all job postings and advertisements are carefully reviewed to ensure continued compliance with New Jersey’s “need not apply” law (even though an employer may ultimately consider a candidate’s unemployment status in its hiring decision).