New Jersey Enacts Statute Banning “Unemployed Need Not Apply” Job Advertisements

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 unemployed.

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:

1. A provision stating that the qualifications for a job include current employment;
2. A provision stating the the employer or employer’s agent, representative, or designee will not consider or review an application for employment submitted by any job applicant currently unemployed; or
3. A provision stating that the employer or employer’s agent, representative, or designee will only consider or review applications for employment submitted by job applicants who are currently employed.

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 violation.

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 Jersey area, call Attorney David S. Rich at (347) 941-0760.