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Employers: What Your Job Postings Say Can Be Held Against You

Posted by Frank Steinberg | Jan 20, 2014 | 0 Comments

On January 7 (yes, in 2014), the Appellate Division upheld a relatively young New Jersey statute against a constitutional challenge.  The decision has implications for every employer in this state.

There's no need to over-complicate the analysis.  The law, NJSA 34:8B-1, prohibits employers that are seeking to fill positions from publishing advertisements that say that applicants must be currently employed in order for their applications to be considered.

Soon after the law was enacted Crest Ultrasonics posted such an ad.  A citizen complained to the state Department of Labor, which investigated, found Crest to be in violation, and fined it $1,000, the maximum for a first offense.  (Second and third violations get fines up to $5,000 and $10,000, respectively, so we're not talking chump change here.)

Crest appealed, claiming that its right to free speech was being violated, contrary to the United States and New Jersey Constitutions. 

In a comprehensive and scholarly opinion by Judge Sabatino, the court upheld the finding of a violation.  The speech in question is commercial speech, which gets less protection under the law than, say, political speech. 

Lessons for Employers:

Don't do it.  Don't say it.  Don't put anything in writing to the effect that “the unemployed need not apply.”  The law in NJ does not say that you have to read applications from the unemployed, or consider them. What you do with them when they come in is your decision. (Other states may differ about this.) 

For my lawyer readers, the opinion is worth reading as a refresher on 1st Amendment principles, especially its analysis of commercial speech, and other consititutional doctrines.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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