Beginning June 1, 2011, New Jersey employers will be prohibited from publishing job advertisements that reflect bias against unemployed individuals. The new law, N.J.S.A §§ 34:8B-1, -2, prohibits employers, directly or through an agent, from knowingly or purposefully publishing (in print or on the Internet) job advertisements stating that: (i) current employment is a qualification for the job; (ii) any unemployed applicant will not be considered for the job; or (iii) only currently employed applicants will be considered for the job.
The new law will be enforced by the New Jersey Commissioner of Labor, and offenders risk civil fines of up to $1,000 for a first violation, up to $5,000 for a second violation, and up to $10,000 for each subsequent violation.
The new law does not create a private right of action by an aggrieved person against an offending employer, nor does it mandate that employers consider unemployed job applicants. In other words, New Jersey employers may still consider and hire only currently employed job applicants, but now they cannot state their intention to do so in their job advertisements. On the former point, however, employers in New Jersey and beyond also should be aware that, at a recent public meeting, the US Equal Employment Opportunity Commission considered whether hiring bias against the unemployed is unlawful, including under a disparate impact theory. Thus, while unemployment may not yet qualify as a protected characteristic under anti-discrimination laws, the screening out of unemployed job applicants might still be the basis for unlawful hiring claims by women, minorities, and other protected groups.
In the meantime, with June 1 just around the corner, New Jersey employers inclined to hire only currently employed persons should be reviewing their job advertisements and postings to ensure they do not run afoul of New Jersey’s new law.