Reminder to New Jersey Employers: Don’t Post Want Ads Excluding the Unemployed

By James Boyan, Esq.
jboyan@pashmanstein.com

On January 7, 2014, a New Jersey appeals court upheld a $1,000 fine to an employer for posting a job advertisement which specified that unemployed individuals need not apply. 

In March of 2011, New Jersey enacted N.J.S.A. 34:8B-1 which prohibits employers from publishing job advertisements that state that applicants must be currently employed for their applications to be accepted, considered or reviewed.  Employers who violate this law are subject to fines of up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation.  N.J.S.A. 34:8B-1 became effective on June 1, 2011.

On August 31, 2011, the Burlington County Times ran a job posting from Crest Ultrasonics (“Crest” or the “Company”) for an open position which stated that applicants: “must be currently employed.”  (Emphasis added).  After reviewing the ad, an individual contacted the New Jersey Department of Labor and Workforce Development (“NJDOL”) and filed a complaint.  The NJDOL investigated the complaint, determined that Crest had violated N.J.S.A. 34:8B-1 and fined the Company and its CEO $1,000.

Crest appealed the NJDOL’s decision to the Superior Court of New Jersey – Appellate Division arguing that N.J.S.A. 34:8B-1 “improperly infringed upon their rights of free speech” in violation of the U.S. and New Jersey Constitutions.  The court, however, rejected Crest’s arguments finding that N.J.S.A. 34:8B-1 “is narrowly tailored to advance a limited, but nevertheless substantial governmental objective in maximizing the opportunities for unemployment workers to have their qualifications presented to prospective employers.”

This case should serve as a reminder to New Jersey employers that their job advertisements should not prevent unemployed individuals from applying for open positions.  It should be noted that the law does not prohibit employers from discriminating against unemployed individuals with respect to hiring decisions.  In other words, employers are permitted to have a preference for hiring currently employed individuals.  But, employers cannot express that preference or indicate that they will not consider applications from individuals who are currently unemployed in their job advertisements.

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