On May 12, 2014, the New Jersey Senate approved a bill—S1440—that would strengthen existing protections for the State’s unemployed. In 2011, New Jersey became the first jurisdiction in the country to limit discrimination against the unemployed by prohibiting job postings that state: (1) current employment is a necessary qualification for the position; (2) an applicant who is currently unemployed will not be considered for employment; or (3) only currently employed applicants will be considered for employment. The 2011 law allows an exception for employers who publish a job posting that only seeks applicants employed by that employer at the time of the position. The law does not provide for a private right of action, and limits relief to a modest fine of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. New Jersey’s Appellate Division recently upheld the constitutionality of the landmark law in New Jersey Department of Labor and Workforce Development v. Crest Ultrasonics, No. A-0417-12T4, 2014 WL 43989 (App. Div. Jan. 7, 2014).
If passed, S1440 would expand New Jersey’s existing “unemployment discrimination” law to also limit employers from considering an applicant’s unemployment status in decisions regarding hiring, compensation, or others terms, conditions or privileges of employment. Despite these proposed restrictions, the current bill would allow employers to:
- inquire into the circumstances surrounding an applicant’s separation from prior employment;
- consider substantially job-related qualifications (for example, the possession of a valid professional license or a minimum level of experience);
- determine that only applicants currently employed by the employer will be considered or given priority for the position (i.e., intra-company hires); and
- set compensation and other terms and conditions of employment based on an applicant’s actual amount of experience.
Civil penalties would remain the same should S1440 become law. The bill now heads to the Senate floor. We’ll keep you posted!