Effective June 1, 2011, a
new statute in New Jersey prohibits businesses from excluding unemployed
individuals in advertisements for job vacancies. The new statute does not
require companies in New Jersey actually to consider hiring the
Specifically, on or about April 24, 2011, New Jersey
Governor Chris Christie signed into law a statute, Public Law 2011, Chapter
40, codified as N.J.S.A. §§ 34:8B-1 - 34:8B-2, which,
effective June 1, 2011, prohibits businesses from knowingly or
purposefully publishing, in print or on the internet, advertisements for any
job openings in New Jersey that include on or more of the following:
In March 2011, the New Jersey State Assembly had passed
the bill by a 72 to 5 vote. That same month, the New Jersey
State Senate had passed the bill by a 33 to 2 tally.
Both the State Assembly and the State Senate had passed
an earlier, stiffer version of the bill in November 2010. However,
in January 2011, Governor Christie had conditionally vetoed the earlier
bill. In his conditional veto, Governor
Christie had contended that the bill's proposed penalties were too
"sever[e]" and that courts might construe the bill to confer on
disappointed job applicants a "new, private civil cause of action" against
businesses which violated the act.
The new statute specifies that employers are not
prohibited from publishing advertisements, for job vacancies in New Jersey, stating that
only applicants who are currently employed by the advertising
employer will be considered.
Further, N.J.S.A. §§ 34:8B-1 - 34:8B-2 specifies
that the new statute does not confer on any aggrieved person a private cause of action against an employer who has
violated, or is alleged to have violated, the new statute.
Rather, N.J.S.A. §§ 34:8B-1 -
34:8B-2 authorizes the New Jersey Commissioner of Labor to
bring a summary proceeding against any business which violates the new
statute. In such a summary proceeding, a company which
violates the new statute may be civilly fined not more than
$1,000 for the first violation, not more than $5,000 for the second
violation, and not more than $10,000 for the third or subsequent
The new statute does not require businesses in New
Jersey actually to consider hiring the unemployed. That is, an
employer in New Jersey may, without running afoul of N.J.S.A. §§
34:8B-1 - 34:8B-2, consider only presently employed individuals for job
openings, as long as the employer does not advertise, in print or on the
internet, its "unemployed need not apply" policy or practice.
Although N.J.S.A. §§ 34:8B-1 - 34:8B-2 does
not require an employer in New Jersey
to consider hiring the unemployed, if an employer in New Jersey invites
job applicants to interview for job vacancies without regard to
whether the candidates are currently working, asks interviewees
whether they are employed, and then rejects the interviewees who respond that
they are not employed, that employer risks violating
federal law. For a more detailed discussion of this issue, see this author's July 8, 2010 blog post.
More specifically, if an employer in New Jersey
invites job candidates to interview for available jobs without regard to
whether the applicants are currently employed, asks interviewees
whether they are working, and then rejects the interviewees who respond that
they are not working, that employer risks violating Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.
("Title VII"). (For more information on Title VII, see here.) This is the case because, in an interview, an
unemployed job candidate is likely to volunteer why he or she is
unemployed. The reason for the job candidate's lack of gainful
employment, in turn, may be a reason which federal law restricts a
business from considering in deciding whether to make an offer of employment.
For example, at a job interview, an unemployed, female
job candidate may tell the employer's representative that she is
not working because she had left the workforce to take care of her
young children. If the employer then declines to hire the job
candidate because she is not employed, the employer could be accused of
gender discrimination against working mothers in violation of Title VII.
As the EEOC Compliance Manual explains, gender discrimination
against working mothers is prohibited by Title VII even if the employer does
not discriminate against childless women.
If your company needs assistance or guidance on a labor or employment law issue and your company is located
in the New York City area, call Attorney David S. Rich at (212) 209-3972.
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