New Jersey Appellate Division Upholds State Law Prohibiting Hiring Discrimination Based on Unemployment
The Appellate Division of the Superior Court of New Jersey ruled that a state law prohibiting discrimination based on unemployment did not violate employers' First Amendment rights of free speech. New Jersey Dept. of Labor and Workforce Development v. Crest Ultrasonics, No. A-0417-12T4, slip op. (N.J. App. Div., Jan. 7, 2014). The plaintiffs alleged that the statute, N.J.S.A. §§ 34:8B-1 et seq., infringed on their free speech rights by improperly regulating the content of public job listings. The court held that the statute meets the requirements set forth by the U.S. Supreme Court for content-based restrictions on commercial speech. The ruling is excellent news for New Jersey's workers and job seekers, many of whom have experienced lengthy periods of time without work.
Unemployment can become a catch-22 for some job seekers, as employers might be unwilling to hire someone who has been out of work for six months or more. The longer one goes without work, the harder it can be to find a job. The law, enacted by the New Jersey Legislature in 2011, seeks to address this problem by placing restrictions on advertisements in print media or on the internet for job openings within the state. Advertisements may not state that current employment is a requirement for a job, that an employer will not consider applicants who are currently unemployed, or that an employer will only consider applicants who are currently employed. The law does not, however, prevent employers from using unemployment as a criterion in their actual decision-making.
Shortly after the law took effect, the plaintiff placed a classified advertisement in the Burlington Times for a service manager position. The ad appeared on August 31, 2011 and stated that applicants for the position "[m]ust currently be employed." The Department of Labor and Workforce Development (LWD) determined that the company had violated N.J.S.A. § 34:8B-1 and assessed a fine of $1,000. The Commissioner of the LWD affirmed the penalty in an administrative decision issued on August 17, 2012, and the company appealed the decision to the Superior Court.