Executive Summary: A bill which would expand existing laws to prohibit discrimination against the unemployed is progressing in the New Jersey state legislature, having been approved by the Senate and reported favorably out of the Assembly Labor Committee as amended. Existing law makes it unlawful to state in a job posting that current employment is required for hire. The bill would expand this law to expressly prohibit discrimination against the unemployed in decisions related to hiring, compensation, and terms, conditions or privileges of employment, but would not create a private right of action for aggrieved applicants.
Bill Would Expand Existing Prohibitions on Discrimination Against the Unemployed
Since 2011, New Jersey law has prohibited employers from publishing job postings that discourage unemployed applicants from applying. Under the law, an employer cannot "knowingly or purposefully publish, in print or on the internet, an advertisement for any job vacancy in this state that contains one or more of the following:
a. Any provision stating that the qualifications for a job include current employment;
b. Any provision stating that 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
c. Any 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."
New Jersey's law was the first of its kind in the nation, although other states and cities have since passed similar measures.
The proposed law (S-1440/A-2910) would expand beyond job postings to prohibit discrimination based on employment status in hiring, compensation, or the terms, conditions or privileges of employment.
As originally introduced, the bill did not distinguish between applicants who were currently unemployed and applicants who had been unemployed. As amended, the bill would prohibit discrimination against job applicants who are "currently unemployed," consistent with the job posting law.
The bill has also been amended to reiterate that it does not create a private right of action. There was some concern that the bill could be used as a basis for a public policy claim (a claim that the employee's termination was in violation of a clear mandate of public policy). The recent amendments to the bill attempt to preclude such a claim by stating that a violation of the law will not trigger a cause of action under another law and that the evidence provided would not be admissible on any claim other than a proceeding to enforce this law.
The New Jersey Business and Industry Association was instrumental in securing these amendments.
The bill would not prohibit an employer from: inquiring into the applicant's employment history and the circumstances surrounding an applicant's separation from prior employment; considering any substantially job-related qualifications, such as professional or occupational licenses, certificates, or permits, or the level of training or education or experience; determining that only applicants who are currently employed by the employer will be considered for employment or given priority; or considering the applicant's actual amount of experience.
The current law provides for civil penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.
Employers' Bottom Line
We will continue to keep you updated on the progress of this bill. Should the measure be enacted, employers should review their existing hiring processes and job postings to ensure compliance with the new law.