May 26, 2020

New Jersey Ban on ‘Currently Employed’ Requirement in Job Ads Resists Constitutional Challenge

A New Jersey appeals court has upheld a state law banning employers from stating in job advertisements that applicants “must be currently employed,” ruling the law does not infringe upon the constitutional right to “free speech.” New Jersey Dep’t of Labor and Workforce Dev. v. Crest Ultrasonics et al., No. A-0417-12T4 (N.J. App. Div. Jan. 7, 2014).

In 2011, the New Jersey legislature passed N.J.S.A. § 34:8B-1, which, in relevant part, prohibits an employer seeking to fill a position in New Jersey from making any statement in an advertisement that only currently employed applicants will be considered for the position. In short, New Jersey banned a “must be currently employed” qualification from job advertisements. (For more on the law, see our article, New Jersey Passes Law Prohibiting Exclusion of Unemployed Individuals for Job Vacancies.)

Facts

Following the departure of a manager with over 20 years of experience, Crest Ultrasonics, a manufacturer and distributor of ultrasonic cleaning equipment, sought a replacement with “current and up to date” technical knowledge of the position. Its advertisement of the job vacancy stated that applicants “must be currently employed,” among other qualifications.

A reader of the advertisement complained to the New Jersey Department of Labor and Workforce Development (“NJDLWD”). Following an investigation, the NJDLWD issued the employer a notice of violation and a $1,000 fine. 

The employer challenged the violation on the grounds that the law unlawfully infringed upon its constitutional rights to free speech under both the First Amendment to the U.S. Constitution and Article I, Paragraph 6 of the New Jersey State Constitution. 

Ad is Commercial Speech

The New Jersey Appellate Division held an employment advertisement is a form of commercial speech. Therefore, restrictions on it are subject to a less-stringent level of judicial scrutiny than restrictions placed upon political speech

The court concluded the law and its restrictions on commercial speech are narrowly tailored to directly advance a substantial governmental interest and, therefore, passed constitutional muster. It ruled the content-based restrictions advanced the substantial governmental interest to increase opportunities for the unemployed. The court explained the effects of the recession, swelling unemployment rolls, and the legitimate objective of returning individuals to the ranks of the employed supported the substantial government interest necessary for the statute to withstand scrutiny.

The court further held the restrictions are narrowly tailored and, in fact, do not require an employer to read such applications or interview or hire unemployed applicants. Instead, it ruled the law simply prohibits an employer from expressly stating that only currently employed applicants will be considered for employment in an advertisement. It noted Oregon, New York City, and the District of Columbia enacted similar (and in some instances more expansive) protections for unemployed job-seekers.

Following a conservative constitutional analysis, the court upheld the legislative enactment.

Employers seeking to fill positions in New Jersey should consider reviewing their job advertisement protocols to ensure compliance with the law. 

Jackson Lewis P.C. © 2020

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About this Author

David G. Islinger, Jackson Lewis, Employment Grievances Lawyer, Labor Contract Interpretation Attorney
Principal

David G. Islinger is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He joined Jackson Lewis in 1995.

Mr. Islinger devotes his practice primarily to traditional labor law, training and counseling matters. Mr. Islinger has extensive experience representing employers in representation cases and unfair labor practice proceedings before the National Labor Relations Board. Mr. Islinger also has represented employers in numerous grievance and arbitration proceedings involving issues surrounding contract...

973-451-6306
James M. McDonnell, Jackson Lewis, restrictive covenants lawyer, harassment retaliation attorney
Principal

James M. McDonnell is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination and wage and hour claims.

Mr. McDonnell regularly represents employers in federal and state courts and administrative agencies, including the Equal Employment Opportunity Commission, the New Jersey Division of Civil Rights, the United States Department of Labor, and the New Jersey Department of Labor. Mr. McDonnell has successfully represented clients in matters before the United States Court of Appeals for the Third Circuit and the Appellate Division of the New Jersey Superior Court.

973-451-6351