Discrimination Against the Unemployed Now Banned in New Jersey: Are More-Expansive Federal Protections Far Behind? | LexisNexis LexisNexis | Duane Morris LLP | 09/19/11

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The attorneys at Duane Morris LLP post:

The New Jersey Legislature recently enacted N.J.S.A. 34:8B-1, a new law designed to help eliminate the discriminatory animus against the unemployed. This statute became effective on June 1, 2011.

The Statute Prohibits:

  • employers and their agents or representatives from publishing (in print or on the Internet) any job listing stating that current employment is a requirement for job consideration.
  • such advertisements from stating that either jobless applicants will not be considered for employment or that only the currently employed will be eligible for the position.

Limited Exceptions to This Law:

  • the New Jersey Civil Service Commission employment system may in certain positions if it is a legal prerequisite for promotion to other state government jobs.
  • allows employers to specifically identify as part of an advertisement any necessary job qualifications (other than current employment) such as mandated education and professional licensing;
  • nothing in the new law bans companies from advertising that only current employees will be considered for open, internal job positions.

Fines and Penalties

While N.J.S.A. 34:8B-1 does not allow job seekers to sue for its violation, employers nevertheless risk the imposition of significant fines, payable to the New Jersey Department of Labor and Workforce Development, for noncompliance. These fines include: up to $1,000 payable for the first offense, up to $5,000 for the second offense and up to $10,000 for the third and all subsequent offenses. Given these penalties for noncompliance, it may be prudent for employers to take immediate steps to comply with the edicts of this new law.

Shades of Gray

The law does not provide a definitive answer on whether employers can still consider an individual’s employment status as part of their hiring determination. But, refusing to hire someone because of his or her unemployed status would seemingly defeat the purpose of the law, the statute by its express terms contains no prohibitions that would interfere with an employer’s continuing right to consider an applicant’s employment status as part of the hiring decision. Instead, on its face, the new law merely precludes the use of specific advertisements indicating that unemployed applicants are not welcome.

Federal Law Outlook

Unlike the New Jersey legislation, companion bills are now pending (at the early committee stage) in Congress before both the House and the Senate that would enact even-broader anti-discrimination protections for the unemployed in the United States. Under these broader pending federal bills, collectively called the Fair Employment Opportunity Act of 2011, the current unemployment status of a job candidate could never be considered in the hiring process, unless current employment is a bona fide occupational qualification that is reasonably necessary to the performance of the advertised job position.

Another key difference between the pending federal bills and the New Jersey law is that, under the proposed federal measures, aggrieved individuals would have the right to maintain a private legal action where a panoply of potential remedies are available-including an award of lost wages, benefits, attorney’s fees and legal costs incurred in filing any lawsuit. Moreover, liquidated damages (damages in addition to the losses incurred) would also be available, unless the prospective employer demonstrated that its violation of the law occurred in “good faith.”

For full article see Discrimination Against the Unemployed Now Banned in New Jersey: Are More-Expansive Federal Protections Far Behind? by Duane Morris.

2/24/12 UPDATE

See also Measures Aim to End Bias Against Long-Term Jobless, Wall Street Journal reports that more than a dozen states are considering legislation to make it illegal for companies to discriminate against the unemployed.



About vinhsu

Center City Philadelphia General Practice Law Firm with emphasis on Criminal Defense, Family Law, Immigration, Real Property, and Wills/Trusts/ Estate Planning. Licensed in Pennsylvania and New Jersey.
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