With unemployment continuing to skyrocket, the
competition for jobs is stiff. There is an old adage that "you need a job
to find another job." To the extent this adage is given credence by those
making hiring decisions, it appears to reflect what may be viewed as a
discriminatory animus against the unemployed, leaving the unemployed faced with
an uphill climb in their efforts to reenter the workforce. The New Jersey
Legislature recently enacted N.J.S.A. 34:8B-1, a new law designed to
help eliminate this barrier in today's job market.
This new statute banning one form of discrimination
against the unemployed became effective June 1, 2011. It prohibits employers
and their agents or representatives from publishing (in print or on the
Internet) any job listing stating that current employment is a requirement for
job consideration. The law further precludes such advertisements from stating
that either jobless applicants will not be considered for employment or that
only the currently employed will be eligible for the position. One of the
limited exceptions to this law involves the New Jersey Civil Service Commission
employment system, where continuing employment in certain positions is a legal
prerequisite for promotion to other state government jobs. The law similarly
allows employers to specifically identify as part of an advertisement any
necessary job qualifications other than current employment, such as mandated
education and professional licensing; and nothing in the new law bans companies
from advertising that only current employees will be considered for open,
internal job positions.
While N.J.S.A. 34:8B-1 does not allow job seekers
to sue for its violation, employers nevertheless risk the imposition of
significant fines, payable to the New Jersey Department of Labor and Workforce
Development, for noncompliance. These fines include: up to $1,000 payable for
the first offense, up to $5,000 for the second offense and up to $10,000 for
the third and all subsequent offenses. Given these penalties for noncompliance,
it may be prudent for employers to take immediate steps to comply with the
edicts of this new law.
One of the first questions that arises from an analysis
of this recently effective law is whether employers can still consider an
individual's employment status as part of their hiring determination. The law
does not provide a definitive answer on that issue. While refusing to hire
someone because of his or her unemployed status would seemingly defeat the
purpose of the law, the statute by its express terms contains no prohibitions
that would interfere with an employer's continuing right to consider an
applicant's employment status as part of the hiring decision. Instead, on its
face, the new law merely precludes the use of specific advertisements
indicating that unemployed applicants are not welcome. Therefore, employers in
New Jersey should still be able to consider an applicant's employment status in
making employment decisions, and can continue probing into the circumstances of
why an applicant may be unemployed. The continuing ability to do so, however,
could be discontinued if recently proposed federal legislation is
passed-legislation that would go beyond the mere proscription of certain kinds
of employment advertisements.
Unlike the New Jersey legislation that plainly falls
short of imposing an absolute ban on consideration of an applicant's unemployed
status, companion bills are now pending in Congress before both the House and
the Senate that would enact even-broader anti-discrimination protections for
the unemployed in the United States. Under these broader pending federal bills,
collectively called the Fair Employment Opportunity Act of 2011, the current
unemployment status of a job candidate could never be considered in the hiring
process, unless current employment is a bona fide occupational qualification
that is reasonably necessary to the performance of the advertised job position.
Similarly, employers and employment agencies would likewise be subject to the
same kinds of restrictions on the content of published and online job
advertisements as those enacted under N.J.S.A. 34:8B-1. Another key
difference between the pending federal bills and the New Jersey law is that,
under the proposed federal measures, aggrieved individuals would have the right
to maintain a private legal action where a panoply of potential remedies are
available-including an award of lost wages, benefits, attorney's fees and legal
costs incurred in filing any lawsuit. Moreover, liquidated damages (damages in
addition to the losses incurred) would also be available, unless the
prospective employer demonstrated that its violation of the law occurred in
At present, these federal bills are at the committee
stage of the legislative process in both the House and the Senate. We will
continue to monitor the progress of these bills, and keep you posted on their
What Does This Mean for Employers?
In the meantime, for those companies doing business in
New Jersey, or who are presently seeking employment candidates in the state, it
is vital that all current and future job postings and advertisements are
reviewed closely to ensure compliance with New Jersey's new protections for the
For Further Information
If you have any questions regarding compliance with N.J.S.A.
34:8B-1, or any other areas of labor or employment law, please contact any member
of the Employment,
Labor, Benefits and Immigration Practice Group or the attorney at the firm
with whom you are regularly in contact.
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