Written by David Katz
Earlier this month, we wrote about New Jersey’s proposed “ban the box” measure—a law that would prohibit employers from inquiring about job candidates’ criminal histories early in the hiring process—heading to Governor Chris Christie’s desk. It’s still sitting there, so no news on that front. However, New Jersey employers will likely soon be dealing with additional hiring process restrictions because also sitting on Governor Christie’s desk is legislation aimed at prohibiting discrimination against the unemployed.
The New Jersey Legislature recently gave final approval (including a 30-5 Senate vote and a 53-22 Assembly vote) to the bill (S-1440), which is designed to supplement an existing New Jersey law prohibiting employers from excluding the unemployed from job advertisements. Governor Christie signed that existing measure into law in 2011, becoming the first state to pass such legislation. (In a related note, the constitutionality of the 2011 statute is currently pending before the New Jersey Supreme Court, as Crest Ultrasonics recently appealed an appellate court ruling rejecting the employer’s argument that the law improperly infringes upon employers’ free speech rights under the First Amendment and the New Jersey Constitution. We previously wrote about the Crest Ultrasonics case here.)
The current iteration of S-1440 would prohibit an employer from discriminating against an applicant in any employment decision concerning hiring, compensation or other terms and conditions of employment because the applicant is currently unemployed. The bill, however, does not prohibit an employer, when making an employment decision, from: (A) inquiring into an applicant’s employment history and the circumstances surrounding the applicant’s separation from prior employment; (B) considering any substantially job-related qualifications, (e.g., professional/occupational licenses, certificates, registrations, permits or other credentials; level of education or training; level of experience); (C) determining that only applicants who are currently employed by the employer will be considered for employment or given priority; or (D) setting compensation or other terms and conditions of employment based on the applicant’s actual amount of experience.
The good news for employers is that the current version of the bill is slightly more employer-friendly than previous versions. Specifically, this version clarifies that the bill only applies to currently unemployed applicants, that employers may still inquire into an applicant’s employment history, and that they may consider current unemployment favorably in making an employment decision. Further, the bill does not provide applicants with the ability to sue employers in court for a violation of the law. Instead, the applicant would have to file an administrative complaint. The current law, which this bill supplements, provides for civil penalties of up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development. The bill is slated to take effect immediately upon enactment.
Governor Christie is expected to sign the bill into law, which we will monitor closely. If passed, New Jersey would join New York City (which we wrote about here), Oregon and Washington, D.C. among the jurisdictions with unemployment discrimination measures in place. In the meantime, New Jersey employers should be prepared to train those conducting job interviews to refrain from asking questions focused on applicants’ current unemployment status and to ensure that they are documenting the valid reasons behind decisions not to hire applicants (e.g., lack of experience).