As we previously reported here, the New Jersey Appellate Division upheld a 2011 law banning employers from publishing advertisements or job postings which include current employment as a requirement for the application to be reviewed, considered, or accepted by the employer. N.J.S.A. 34:8:8B-1.
On June 25, 2014, the New Jersey Supreme Court agreed to review the Appellate Division’s decision in New Jersey Dep’t of Labor and Workforce Dev. v. Crest Ultrasonics, Case No. A-0417-12T4 (N. J. App. Div. Jan. 7, 2014). The New Jersey Supreme Court framed the issue on appeal as whether N.J.S.A. 34:8B-1 restricts employers’ freedom of speech under the state and federal constitution in forcing them to review, consider, and accept applications from those who are currently unemployed. The court has not yet set a date for oral arguments.
Shortly after the adoption of the New Jersey statute, an employer, Crest Ultrasonics posted a job advertisement to fill the vacant position of Service Manager with the requirement that an applicant “must be currently employed.” Id. at 4. The New Jersey Department of Labor and Workforce Development learned of this advertisement, conducted an investigation, and issued a $1,000 fine – the maximum penalty for a first-time offender on the legislation. Id. at 5. Crest Ultrasonics subsequently brought suit alleging that the statute’s prohibitions “are improper content-based infringements upon their rights of free speech under the federal and state constitutions.” Id. at 7.
The Court’s Decision
The Appellate Division applied the test found in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Under Central Hudson, the four-part test requires courts to determination whether: (1) the speech concerns a lawful activity and is not misleading; (2) whether the asserted governmental interest is substantial; (3) whether the regulation directly advances the governmental interest asserted; and (4) whether it is more extensive than is necessary to serve that interest. Id. at 21. In applying this test, the Court found the statute was sufficiently narrowly tailored to further the government’s substantial interest in giving more opportunities to the currently unemployed to seek employment. The Court further held that since the statute does not control whether an employer must decide to interview or hire a candidate who is unemployed, it is not broader than necessary to accomplish its goals.
Implication for Employers
In addition to those statutes that are already on the books, several other states and municipalities are weighing the adoption of legislation such as New Jersey’s designed to aid the unemployed in obtaining employment. Furthermore, the EEOC has held public meetings to examine the impact of employers considering only those currently employed for job vacancies and President Obama’s American Jobs Act, first introduced in 2011, would make it illegal for employers to run advertisements saying that they will not consider unemployed workers, or to refuse to consider or hire people because they are unemployed. Therefore, all eyes will be on New Jersey’s Supreme Court to see how it interprets this statute, and whether it finds that the job ban requirement violates either the New Jersey or federal constitution. Stay tuned for this one!