On January 7, 2014, the New Jersey Appellate Division rejected a constitutional challenge to New Jersey’s recent law that restricts employers from publishing job advertisements that require applicants to be currently employed in order to be considered for the position.
We previously posted about the law, which passed the New Jersey state legislature in 2011. This law was enacted to combat the high levels of unemployment that plagued New Jersey during the economic downturn.
Crest Ultrasonics (“Crest”) admittedly posted a newspaper advertisement shortly after the law went into effect that contained prohibited language in violation of the law. The New Jersey Department of Labor and Workforce Development (NJDOL) investigated the matter, cited Crest for the statutory violation, and imposed a $1,000 fine against the Company, the maximum penalty permitted by the statute.
Crest filed an administrative appeal and later a lawsuit alleging that the statute’s prohibitions are improper content-based restrictions on its free speech rights. The Appellate Court upheld the constitutionality of the statute, concluding that “the statute is narrowly tailored to advance a limited, but nevertheless substantial, government objective in maximizing the opportunities for unemployed workers to have their qualifications presented to prospective employers.” The court reasoned that the restrictions on free speech are “modest” and constitutional. However, the court remanded the case to the NJDOL to reconsider the $1,000 penalty because the NJDOL did not “consider the equities of the penalty in light of the nature of the substantial constitutional issues litigated.”
Given the lingering effects of the recent recession on the state workforce, we expect the NJDOL to continue to investigate and fine employers who violate this new law.