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Tuesday, January 7, 2014

NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT VS. CREST ULTRASONICS, ET AL



 NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT VS. CREST ULTRASONICS, ET AL
A-0417-12T4

We uphold the constitutionality of N.J.S.A. 34:8B-1, a measure the Legislature enacted in 2011 after the Governor's conditional veto of a more sweeping version of the proposed law. Subject to certain exceptions, the statute bars employers seeking to fill job vacancies in this State from purposefully or knowingly publishing advertisements stating that job applicants must be currently employed in order for their applications to be accepted, considered, or reviewed.

Appellants, a New Jersey company and its chief executive officer, posted a newspaper ad containing such prohibited language shortly after the law became effective, and were fined $1,000 by the Department of Labor and Workforce Development. They contend that N.J.S.A. 34:8B-1 improperly infringes upon their rights of free speech, in violation of the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution.

Applying the well-established "intermediate scrutiny" test for evaluating content-based restrictions on commercial speech set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 561, 100 S. Ct. 2343, 2349, 65 L. Ed. 2d 341, 348 (1980), we conclude that the statute is narrowly tailored to advance a limited, but nevertheless substantial, governmental objective in maximizing the opportunities for unemployed workers to have their qualifications presented to prospective employers. The modest restrictions that the State has placed upon job advertising are constitutionally valid, even though employers might not consider, or ultimately hire, most of the unemployed applicants who respond to such job postings.

We therefore affirm the finding of a violation, but remand for the Department for reconsideration of the fine under the circumstances presented. 01/07/14