By: Kathryn E. Dugan
The New Jersey Appellate Division recently upheld a New Jersey law that bans employers from stating in a job advertisement that applicants must be employed elsewhere in order to be considered for employment. The law was passed by the legislature in 2011 to ensure that many laid-off workers who were searching for jobs did not face an additional barrier of being required to be employed in order to apply for a particular position.
Following the passage of the 2011 law, Crest Ultrasonics posted a small ad in the Burlington County Times for a service manager. The ad read, in part, that the applicant “must be currently employed.” The New Jersey Department of Labor and Workforce subsequently investigated Crest Ultrasonics and its ad. After the investigation was complete, the Department sent Crest Ultrasonics a letter notifying them of its determination that their ad violated New Jersey law and that they were consequently being fined $1,000. Crest Ultrasonics filed an administrative appeal, however the fine was upheld. Crest Ultrasonics then appealed to the Appellate Division arguing that the statute violated its free speech rights. The Appellate Division disagreed.
In upholding the fine, the Appellate Division held that the 2011 law is narrowly tailored with a limited but significant goal of helping unemployed workers present their qualifications to potential employers. Specifically, the Appellate Division opined that the modest restrictions that the state has placed upon job advertising are constitutionally valid and directly advance the governmental purpose of increasing job opportunities for unemployed workers. As a result, the court held that must-be-employed job ads are impermissible under NJ law.
Employers should carefully craft job advertisements to ensure they comply with New Jersey and federal laws. If you have any questions, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at email@example.com, or Kathryn E. Dugan, Esq., Associate in the Employment Law & Litigation Group, at firstname.lastname@example.org.