Employers Barred From Requiring Current Employment to Apply for Open Position
Can an employer require in a job posting that applicants be currently employed elsewhere? Not according to the New Jersey Appellate Division. In a case of first impression, the court held that the employers’ requirement constituted discrimination against unemployed individuals.
In 2011 when our country was facing an economic recession, numerous laid-off workers who were searching for new employment faced additional obstacles. One was the requirement that the worker be employed to apply for the job. As a result, New Jersey passed N.J.S.A. 34:8B-1 (the “Statute”) which expressly forbids this practice.
In August 2011, Crest Ultrasonics was allegedly unaware of the Statute and placed a job advertisement for a service manager in a local newspaper with several requirements, including that the applicant be currently employed. The New Jersey Department of Labor and Workforce Development imposed a fine of $1,000 on Crest Ultrasonics, which was affirmed on appeal. Crest Ultrasonics argued to the New Jersey Appellate Division panel that the Statute was unconstitutional on several grounds, including that it infringed upon an employer’s First Amendment rights to free speech.
The appeals court disagreed with the company’s claim and concluded that the Statute was narrowly tailored to advance a legitimate government objective and unemployed workers should have the opportunity to present their qualification for a job to prospective employers.
If you have concerns regarding your business’s compliance with the Statute or other laws, the legal team at Slater, Tenaglia, Fritz & Hunt can help ensure that your business is in compliance.
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