New Jersey Appellate Division Upholds State Law Prohibiting Hiring Discrimination Based on Unemployment

file000103102419.jpgThe 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.

The company claimed that the law violates the First Amendment by placing improper content-based restrictions on speech. U.S. law generally holds that the government may regulate the time, place, and manner of speech, such as noise level restrictions and permit requirements for public assemblies. It cannot, however, regulate the content of speech, with very narrow exceptions. Commercial speech, meaning speech “related solely to the economic interests of the speaker and its audience,” Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of NY, 447 U.S. 557, 561 (1980), enjoys less constitutional protection than other types of speech, but is still reasonably free of content-based restrictions.

The Appellate Division, applying the test set out by the U.S. Supreme Court in Central Hudson, ruled that the New Jersey statute does not violate the First Amendment. It found that the state’s objective in enacting the law, to protect the ability of unemployed workers to get a fair opportunity to apply for jobs, is a sufficiently substantial state interest. It further found that the statute is narrowly tailored to achieve this objective.

If you need to speak to an employment attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or 646-867-7997.

More Blog Posts:

Pregnancy Now a Protected Class Under New Jersey’s Law Against Discrimination, The New Jersey Employment Law Firm Blog, February 6, 2014
Hudson County Jury Awards Former Public Safety Director $440,000 in Back Pay for Unlawful Race Discrimination, The New Jersey Employment Law Firm Blog, January 15, 2014
New Jersey Law Protects Workers from Discrimination Prohibited by Proposed Federal Employment Non-Discrimination Act, The New Jersey Employment Law Firm Blog, December 5, 2013
Photo credit: Kevin_P from morguefile.com.

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