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Can we consider only currently working candidates?

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in Discrimination and Harassment,Hiring,Human Resources

Q. What restrictions exist on advertising for job vacancies? We are flooded with applications and have considered limiting applications to the currently employed. We worry the unemployed have rusty skills. Can we say we won’t consider hiring unemployed people?

A. No. New Jersey just became the first state in the country to outlaw job postings that expressly bar unemployed applicants from applying.

The new law, effective June 1, 2011, penalizes employers that “knowingly and purposefully” publish an advertisement (in print or on the Internet) for any vacancy in the state that excludes unemployed individuals from consideration. Specifically, employers cannot make current employment a job qualification, nor may they state that currently unemployed candidates will not be considered, or that only currently employed job applicants will be considered.

The new state law subjects an employer to a $1,000 fine for the first violation, $5,000 for the second and $10,000 for each subsequent violation. However, it only authorizes suits by the state itself rather than an excluded job applicant.

Employers remain free to state in their advertisements that only applicants they currently employ may apply for a specific job. In other words, restricting job announcements to internal applicants remains fine.

The new law also does not prevent employers from stating in advertisements that applicants must possess a valid professional or occupational license, certificate, registration, permit or other credential, or a minimum level of education, training or professional, occupational or field experience.

Entirely apart from the new law, employers have long been forbidden from discriminating among job applicants on grounds of race, gender, age or any of the other protected categories contained in the New Jersey Law Against Discrimination or federal anti-discrimination law.

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