New Jersey Department of Labor and Workforce Development v. Crest Ultrasonics

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0417-12T4
NEW JERSEY DEPARTMENT
OF LABOR AND WORKFORCE APPROVED FOR PUBLICATION
DEVELOPMENT,
January 7, 2014
Petitioner-Respondent,
APPELLATE DIVISION
v.
CREST ULTRASONICS and
J. MICHAEL GOODSON, CEO
and INDIVIDUALLY,
Respondents-Appellants.
__________________________________
Argued December 17, 2013 - Decided January 7, 2014
Before Judges Messano, Sabatino, and Hayden.
On appeal from the New Jersey Department of
Labor and Workforce Development, Agency Ref.
No. GE-2619-0911-SIM.
Richard W. Berg argued the cause for
appellants (The Law Office of Robin Kay
Lord, LLC, attorneys; Robin Kay Lord and Mr.
Berg, of counsel and on the brief).
Robert M. Strang, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Mr. Strang, on the
brief).
The opinion of the court was delivered by
SABATINO, J.A.D.
In this case of first impression, appellants challenge 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 that do not apply here, 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 are a New Jersey company and its chief executive
officer. Seeking to fill a job vacancy, they admittedly posted
a newspaper ad containing such prohibited language shortly after
the law became effective. Appellants were consequently fined by
the Department of Labor and Workforce Development (the
"Department") pursuant to the statute and its implementing
regulations. In contesting that fine, appellants 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.
For the reasons set forth in this opinion, we reject
appellants' claims of unconstitutionality. Applying the well-
established test for evaluating content-based restrictions on
2 A-0417-12T4
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
under the statute 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 Department's enforcement of the
statute and its finding of a violation. However, we remand the
matter to the agency for reconsideration of appellants' fine, in
light of the distinctive circumstances presented by this
precedential litigation.
I.
The parties have stipulated to the relevant facts.
Appellants are Crest Ultrasonics ("Crest"), a New Jersey
corporation that manufactures and distributes ultrasonic
precision cleaning equipment, and its chief executive officer,
J. Michael Goodson. The company needed to replace its Service
3 A-0417-12T4
Manager1 at its facility in Ewing, an employee who had served in
that position for over twenty years. Appellants regarded the
vacant position as one that "requires technical knowledge that
is both current and up to date."
After several unsuccessful attempts to fill the position,
appellants placed an employment advertisement in the classified
section of the Burlington County Times. The short text of the
ad, which appeared in the newspaper on August 31, 2011, read as
follows:
SERVICE MANAGER
65K-75K. Must be currently employed.
Technically competent. Customer Friendly
CREST ULTRASONICS
EWING TWP, NJ
HR@crest-ultrasonics.com
[(Emphasis added).]
That same day, an individual2 placed a phone call to the
Department to report concerns about the ad. The individual
followed up with a letter, asking the Department "if it is legal
to place an ad in the unemployment section of the newspaper that
1
The parties' stipulation of facts also refers to the position
as that of a "Service Manager Receiver."
2
The individual who reported the situation to the Department is
not a party to this case. The record does not clearly indicate
that he was a potential job applicant, although the gist of his
letter suggests that he felt he had been unfairly discriminated
against as an unemployed person.
4 A-0417-12T4
as a condition of applying for a position you must be currently
employed."
In response to the citizen's complaint, the Department
assigned an investigator to review the circumstances. The
investigator twice visited appellants' offices, reviewing
various payroll and other company records.
After the investigation was completed, the Department sent
Crest and Goodson a letter notifying them of its determination
that their ad violated N.J.S.A. 34:8B-1, and that they were
consequently being fined $1,000 pursuant to N.J.S.A. 34:8B-2.
The letter advised appellants that they could contest the
assessed fine by detaching and returning a form enclosed with
the notice letter within sixteen days.
The Department subsequently issued an administrative order
reiterating the $1,000 penalty against appellants, noting that
they had failed to respond to the earlier notice. Appellants
then filed an administrative appeal with the Department,
asserting that the fine was improper because "the law [N.J.S.A.
34:8B-1] is unconstitutional."
The parties' counsel thereafter jointly developed and
agreed upon a stipulation of facts. The stipulation consisted
of nineteen paragraphs, including a final paragraph which stated
that the parties had agreed that the facts recited therein,
5 A-0417-12T4
along with various specified exhibits, would "serve as the
'written record' pursuant to N.J.A.C. 12:67-1.53 so the matter
may proceed to the Commissioner [of the Department] for a Final
Administrative decision." The parties chose this route in order
to "eliminate[] the cost and delay associated with transmitting
the case to the Office of Administrative Law when there existed
no necessity for fact-finding, and the only issue was the
constitutionality of N.J.S.A. 34:8B-1."
The Commissioner subsequently issued a final administrative
decision on August 17, 2012, upholding the $1,000 penalty
assessed against appellants. The Commissioner expressly
declined to address appellants' contention that N.J.S.A. 34:8B-1
is unconstitutional. On that subject, the Commissioner noted
that "the final responsibility to pass upon the
3
N.J.A.C. 12:67-1.5 states, in pertinent part, that:
[w]hen the Director [of the Division of Wage
and Hour Compliance] assesses an
administrative penalty . . . the employer
shall have the right to file an appeal with
the Commissioner [of the Department]. . . .
An appeal must be received by the
Commissioner within 15 business days
following receipt by the employer of the
notification[.] . . . The Commissioner shall
decide any appeal . . . on the written
record or shall provide a hearing pursuant
to the Administrative Procedure Act . . .
and the Uniform Administrative Procedure
Rules[.]
6 A-0417-12T4
constitutionality of a given piece of legislation rests in the
courts," adding that "it is the duty of the various [S]tate
agencies and administrative bodies to accept a legislative act
as constitutional until such time as it has been declared to be
unconstitutional by a qualified judicial body." Hence, the
Commissioner stated that he had based his decision to uphold the
$1,000 fine "solely upon the stipulated facts and attached
exhibits, which together comprise the record in this matter."
This appeal ensued. Fundamentally, appellants maintain
that the statute's prohibitions are improper content-based
infringements upon their rights of free speech under the federal
and state constitutions. They also allege violations of due
process and other constitutional principles. The Department
counters that the statute promotes legitimate and significant
governmental interests, and that it has been crafted in a
measured fashion that does not unduly infringe upon the
expressive freedoms of employers or other constitutional rights.
II.
A.
N.J.S.A. 34:8B-1, and the companion penalty provision in
N.J.S.A. 34:8B-2, were enacted into law in March 2011. They
became effective on June 1, 2011. The statute has its genesis
7 A-0417-12T4
in A-3359, a bill which was introduced in October 2010.4 See
N.J. State Law Library, Legislative History Checklist to
N.J.S.A. 34:8B-1.5 The bill was approved by the Assembly Labor
Committee on October 14, 2010, and initially passed the full
Assembly later that same month. The provision was also approved
by the Senate Labor Committee and a subsequent vote of the full
Senate in November 2010.
The bill was conditionally vetoed by Governor Chris
Christie on January 11, 2011. See Governor's Conditional Veto
to Assembly Bill No. 3359 (Jan. 11, 2011). In his veto message,
Governor Christie stated that he "share[d] the sponsors'
interest in removing barriers to employment for people who are
actively seeking work." Id. at 1. However, he noted that "the
bill, as currently drafted, is vague and confusing." Ibid.
Governor Christie accordingly recommended twelve proposed
changes to the bill.6 Id. at 3-5. All twelve of Governor
4
An identical bill, S-2388, was introduced in the Senate.
5
Available at
http://law.nj.statelib.org/law_files/njlh/lh2011/L2011c40.pdf.
6
Governor Christie's conditional veto message recommended
amendments to the bill that included a lowering of the proposed
fine for first-time violations from $5,000 to $1,000. The
Governor also proposed adding the final two paragraphs to
subsection (c), discussed infra at Part II(B)(4), which
clarified that employers could still include in their job
advertisements other prerequisites for employment, such as
(continued)
8 A-0417-12T4
Christie's proposed amendments were thereafter adopted by the
Legislature without alteration. Subsequently, the final version
of the bill was enacted into law as L. 2011, c. 40, on March 29,
2011. See Legislative History Checklist, supra.
The statute's core substantive provision, N.J.S.A. 34:8B-1,
entitled "Restrictions upon use of employment as qualification
for position vacancies," states:
Unless otherwise permitted by the provisions
of Title 11A of the New Jersey Statutes[7] or
any other law, rule, or regulation, no
employer or employer's agent,
representative, or designee shall 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
(continued)
licensing or education, and could also note in an ad that they
would only consider internal applicants.
7
The reference to Title 11A concerns the State's civil service
laws, N.J.S.A. 11A:1-1 to 12-6, which are not at issue in this
case involving an advertisement for private employment.
9 A-0417-12T4
applications for employment submitted by job
applicants who are currently employed.
Nothing set forth in this section shall be
construed as prohibiting an employer or
employer's agent, representative, or
designee from publishing, in print or on the
Internet, an advertisement for any job
vacancy in this State that contains any
provision setting forth any other
qualifications for a job, as permitted by
law, including, but not limited to, the
holding of a current and valid professional
or occupational license, certificate,
registration, permit or other credential, or
a minimum level of education, training or
professional, occupational or field
experience.
In addition, nothing set forth in this
section shall be construed as prohibiting an
employer or employer's agent,
representative, or designee from publishing,
in print or on the Internet, an
advertisement for any job vacancy that
contains any provision stating that only
applicants who are currently employed by
such employers will be considered.
[(Emphasis added).]
The companion penalty provision in N.J.S.A. 34:8B-2 provides
that:
a. Any employer who violates this act
[N.J.S.A. 34:8B-1] shall be subject to a
civil penalty in an amount not to exceed
$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 in a summary proceeding pursuant
to the "Penalty Enforcement Law of 1999,"
P.L. 1999, c. 274 [N.J.S.A. 2A:58-10 to -12].
10 A-0417-12T4
b. Nothing set forth in this act shall be
construed as creating, establishing or
authorizing a private cause of action by an
aggrieved person against an employer who has
violated, or is alleged to have violated,
the provisions of this act.
[(Emphasis added).]
This legislation was enacted during the midst of a national
recession that indisputably caused a significant adverse impact
upon the economy and the workforce in the State of New Jersey.
We can readily take judicial notice that the bill became law in
a context where unemployment levels in this State had been
rising, businesses were widely downsizing, and new job
opportunities were waning.8 These conditions had produced a
harsh reality in which many workers remained on the unemployment
rolls for prolonged periods of time and were finding it
8
When the legislation was first introduced in October 2010,
unemployment rates in New Jersey hovered at approximately 9.2
percent. See State of New Jersey Dep't of Labor & Workforce
Dev., Employers Add 10,000 Jobs in November; Unemployment Rate
Remains at 9.2 Percent (Dec. 15, 2010), available at
http://lwd.dol.state.nj.us/labor/lwdhome/press/2010/20101215_une
mployment_release.html.
By the time the legislation became effective in June 2011,
"New Jersey's unemployment rate [had] edged higher . . . to 9.5
percent." See State of New Jersey Dep't of Labor & Workforce
Dev., Private Sector Job Growth Continued in June Adding 6,400
Jobs (July 21, 2011), available at
http://lwd.dol.state.nj.us/labor/lwdhome/press/2011/20110721_une
mployment_release.html.
In presenting this background information, we do not mean
to suggest that the statute would become constitutionally
invalid in better economic times.
11 A-0417-12T4
difficult to be considered for and obtain new positions. At the
same time, certain employers that did have vacant positions
apparently were disinclined to hire persons who were currently
jobless, preferring instead to focus their hiring on the pool of
applicants who currently held other positions.
During the Assembly session of October 25, 2010 cited in
the Department's brief, one of the bill's sponsors, Assemblyman
Peter J. Barnes III, underscored the importance of promoting the
ability of currently unemployed persons to be considered for
vacant jobs. When such jobless persons become discouraged from
applying for work, Barnes asserted, both they and potential
employers are harmed, through the elimination of a whole segment
of the population that might otherwise be qualified to do the
tasks required.
Assemblyman Barnes noted that it had been his original
intention to seek to amend the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 to -42, to prohibit employers
from discriminating against unemployed job applicants. Rather
than pursuing a more ambitious measure directed to the merits of
an employer's hiring decisions, he compromised by introducing
this narrower bill instead.9
9
See Recording of Oct. 25, 2010 Assembly Session, available at
http://www.njleg.state.nj.us/media/archive_audio.asp?SESSION=201
(continued)
12 A-0417-12T4
The official statement accompanying the bill reads as
follows:
This bill prohibits an employer or
employer's agent, representative, or
designee to publish, in print or on the
Internet, an advertisement for any job
vacancy that prohibits, announces or
suggests that unemployed individuals need
not apply for a job vacancy. The bill
provides for the imposition of civil
penalties, for a violation of the bill, in
an amount not to exceed $5,000 for the first
violation, or $10,000 for each subsequent
violation, collectible by the Commissioner
of Labor and Workforce Development.
[Sponsor's Statement to Assembly Bill No.
A3359 (Oct. 7, 2010).]
Apart from these particular aspects of the advertising
statute's legislative history, the Department contends that
N.J.S.A. 34:8B-1 "shares a common purpose" with the Unemployment
Compensation Act, N.J.S.A. 43:21-2 to -24.30. The latter
statute requires unemployed residents to seek jobs actively in
order to qualify for unemployment benefits. See N.J.S.A. 43:21-
4(c)(1) ("An unemployed individual shall be eligible to receive
benefits with respect to any week eligible only if . . . [t]he
individual is able to work, and is available for work, and has
demonstrated to be actively seeking work.") (emphasis added).
(continued)
2 (click Select Session, 2010-2011, Assembly Session, Monday,
October 25, 2010, 1:00 p.m., Assembly Chambers, View).
13 A-0417-12T4
According to the Department, "[t]hese statutes are mutually
supportive and should be read [in pari materia] as part of an
overall legislative scheme."10
Other jurisdictions have recently enacted similar or more
expansive laws designed to aid unemployed workers in their job
searches. See generally Jennifer Jolly Ryan, Repairing Damaged
Goods: Federal and State Legislation Prohibiting Employers from
Making Current Employment a Job Requirement, 14 Rutgers Race &
L. Rev. 54 (2013) (canvassing the enacted and pending provisions
in other jurisdictions). In 2012, Oregon passed a statute
worded very similarly to N.J.S.A. 34:8B-1, which prohibits
employers from publishing job ads that make current employment a
10
The legislative history for N.J.S.A. 34:8B-1 does not refer
explicitly to the Unemployment Compensation Act, nor does it
state that the former was specifically enacted to serve as a
companion provision to N.J.S.A. 43:21-2. However, we accept the
Department's argument that there is some degree of implicit
connection between the statutes. The statutes do relate to the
same general subject matter, i.e., unemployment. Moreover, the
new statute's effort to lessen obstacles for jobless persons to
regain employment does tie in with the policies set forth in the
Title 43 provisions. See Burt v. W. Jersey Health Sys., 339
N.J. Super. 296, 304 (App. Div. 2001) ("In construing statutes
relating to the same subject matter, we must strive to harmonize
them. Thus, 'statutes in pari materia, are to be construed
together when helpful in resolving doubts or uncertainties and
the ascertainment of legislative intent.'") (internal citations
omitted) (quoting In the Matter of J.W.D., 149 N.J. 108, 115
(1997)). However, for the reasons that follow, infra, we do not
perceive this connection between the two sets of laws, although
it is helpful to the State's defense, to be the linchpin of the
First Amendment analysis.
14 A-0417-12T4
hiring qualification.11 That same year, the District of Columbia
adopted a provision that not only bans such "need not apply"
advertising content, but goes further and also makes it illegal
to refuse to hire or consider hiring a potential employee based
upon his or her unemployed status.12 The City of New York has
likewise adopted a comparable ban.13 We were advised at oral
argument that Rhode Island is considering similar legislation,
but is awaiting the outcome of the present appeal and the
resolution of this constitutional challenge to the New Jersey
provisions.
As Professor Ryan's journal article has noted, these
various laws have been enacted in recognition that "[t]he
11
See 2012 Or. Laws Ch. 85, § 2(1)(a) ("[A]n employer, the
employer's agent, representative or designee or an employment
agency may not knowingly or purposefully publish in print or on
the Internet an advertisement for a job vacancy in this state
that provides that . . . [t]he qualifications for a job include
current employment.").
12
See D.C. Code § 32-1362 (2012) ("No employer or employment
agency shall . . . [p]ublish, in print, on the Internet, or in
any other medium, an advertisement or announcement for any
vacancy in a job for employment that includes . . . [a]ny
provision stating or indicating that an individual's status as
unemployed disqualifies the individual for the job.").
13
See N.Y.C. Admin. Code § 8-107(21)(a)(2)(a) (2012) ("[N]o
employer, employment agency, or agent thereof shall publish, in
print or in any other medium, an advertisement for any job
vacancy in this city that contains . . . [a]ny provision stating
or indicating that being currently employed is a requirement or
qualification for the job.").
15 A-0417-12T4
undisputed proof is that the longer one is unemployed, the less
likely one will find a job." Ryan, supra, 14 Rutgers Race & L.
Rev. at 59 & n.32. "When employers require job-seekers to be
currently employed before even considering them for available
job openings, unemployed workers continue to face
disproportionate circumstances as their period of unemployment
grows longer." Id. at 59-60, 60 n.37. Some employers, however,
perceive that currently jobless persons are less likely to be
suitable applicants because they may lack current skills, or
because they may have lost their previous jobs due to poor
performance. See id. at 60-62. In addition, because of the
surplus of supply in the labor market, hiring employers may
already be flooded with more than sufficient applications from
currently employed candidates. Id. at 60.
B.
We now turn to the merits of appellants' constitutional
challenge. In doing so, we bear in mind that "[t]he power of
[a] [c]ourt to declare a statute unconstitutional must be
delicately exercised." Hamilton Amusement Ctr. v. Verniero, 156
N.J. 254, 285 (1998) (citing Harvey v. Bd. of Chosen
Freeholders, 30 N.J. 381, 388 (1959)), cert. denied, 527 U.S.
1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770 (1999). "The strong
presumption of constitutionality that attaches to a statute can
16 A-0417-12T4
be rebutted only upon a showing that the statute's 'repugnancy
to the Constitution is clear beyond a reasonable doubt.'" Ibid.(quoting Harvey, supra, 30 N.J. at 388).
Appellants' claims of invalid infringement of their free
speech rights trigger the application of several long-standing
principles of First Amendment law.14 At the outset, it is
undisputed that appellants' classified advertising is a species
of commercial speech rather than political speech. In
Pittsburgh Press Co. v. Pittsburgh Commission on Human
Relations, 413 U.S. 376, 385, 93 S. Ct. 2553, 2558, 37 L. Ed. 2d
669, 677 (1973), the United States Supreme Court observed that
help-wanted ads conveying "no more than a proposal of possible
employment" were "classic examples of commercial speech."
14
We discern no independent test for assessing the validity of
commercial speech restrictions under the New Jersey
Constitution. "Because we ordinarily interpret our State
Constitution's free speech clause to be no more restrictive than
the federal free speech clause, '[w]e rely on federal
constitutional principles in interpreting the free speech clause
of the New Jersey Constitution.'" Hamilton Amusement Ctr.,
supra, 156 N.J. at 264 (internal citations omitted) (quoting
Karins v. City of Atlantic City, 152 N.J. 532, 547 (1998)). The
federal Central Hudson test has traditionally guided the
commercial speech cases litigated in our State. See, e.g., Twp.
of Pennsauken v. Schad, 160 N.J. 156, 176 (1999) (applying the
Central Hudson framework to analyze an ordinance involving
commercial speech).
17 A-0417-12T4
It is equally clear that the prohibitions in N.J.S.A. 34:8B-1
are content-based, not content-neutral. Appellants do not
claim, however, that the statute is a form of "viewpoint"
discrimination, a circumstance which can trigger, in some
contexts, an even higher level of judicial scrutiny than that
which applies to content-based restrictions.15
In traditional First Amendment jurisprudence, "[w]hen a
statute favors one speaker over another, it is a form of
content-based regulation. The government must abstain from
regulating speech when the specific motivating ideology or the
opinion or perspective of the speaker is the rationale for the
15
For an explanation of the analytical differences between
viewpoint-based and content-based restrictions on speech,
compare State v. DeAngelo, 197 N.J. 478, 486-87 (2009) ("As a
general rule, laws that by their terms distinguish favored
speech on the basis of ideas or views expressed are content-
based.") (internal citations and quotation marks omitted), with
Rosenberger v. Rectors & Visitors of Univ. of Va., 515 U.S. 819,
829, 115 S. Ct. 2510, 2516, 132 L. Ed. 2d 700, 712 (1995) ("When
the government targets not subject matter, but particular views
taken by speakers on a subject, the violation of the First
Amendment is all the more blatant.") (emphasis added) (citations
omitted).
However, even viewpoint-based regulations in the commercial
realm are commonly analyzed using intermediate scrutiny. See
generally Greater New Orleans Broad. Ass'n v. United States, 527
U.S. 173, 119 S. Ct. 1923, 144 L. Ed. 2d 161 (1999). By way of
an illustration, N.J.S.A. 34:8B-1 might be more vulnerable to
constitutional attack if it prohibited business associations or
advocacy groups from publishing ads expressing policy views that
the government should not meddle in the labor market and in
private hiring processes.
18 A-0417-12T4
restriction." Chez Sez VIII, Inc. v. Poritz, 297 N.J. Super.
331, 342 (App. Div. 1997) (internal citations and quotation
marks omitted).
Content-based restrictions on political speech are
considered "presumptively invalid" unless they are able to
withstand a strict scrutiny analysis. R.A.V. v. City of St.
Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 2542, 120 L. Ed. 2d
305, 317 (1992). However, courts have customarily declined to
apply an equally stringent review standard to content-based
regulations of commercial speech, instead utilizing the four-
part intermediate scrutiny framework of Central Hudson,
discussed infra.16
16
See, e.g., Dex Media W., Inc. v. City of Seattle, 696 F.3d
952, 956-57 (9th Cir. 2012) ("We evaluate content-based
restrictions on noncommercial speech under strict scrutiny. We
analyze similar restrictions on commercial speech under a more
lenient standard, as set forth in Central Hudson[.]") (citations
omitted); B&B Coastal Enters., Inc. v. Demers, 276 F. Supp. 2d
155, 163 (D. Me. 2003) ("In the First Circuit, regardless of
whether a regulation of commercial speech is content-based, the
test put forth in the Supreme Court's Central Hudson opinion,
not strict scrutiny, will be applied to evaluate the
regulation's constitutionality."); N. Olmstead Chamber of
Commerce v. City of N. Olmstead, 86 F. Supp. 2d 755, 769 (N.D.
Ohio 2000) ("Content-based restrictions on truthful,
nonmisleading commercial speech receive intermediate scrutiny
with bite under the four-part Central Hudson test."); Larson v.
City & Cnty. of San Francisco, 123 Cal. Rptr. 3d 40, 58 (2011)
("[B]ecause regulation of commercial speech based on content is
viewed as less problematic than a content-based regulation of
non-commercial speech, content-based restrictions on commercial
(continued)
19 A-0417-12T4
In its 1980 seminal opinion in Central Hudson, the United
States Supreme Court described commercial speech as "expression
related solely to the economic interests of the speaker and its
audience." Central Hudson, supra, 447 U.S. at 561, 100 S. Ct.
at 2349, 65 L. Ed. 2d at 348 (citing Va. Pharm. Bd. v. Va.
Citizens Consumer Council, 435 U.S. 748, 762, 96 S. Ct. 1817,
1825-26, 48 L. Ed. 2d 346, 359 (1976)). "[B]oth the United
States Supreme Court and [the New Jersey Supreme Court] have
held that the United States Constitution accords less protection
to commercial speech than to other constitutionally-guaranteed
expression." Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 72
(1985) (citing Central Hudson, supra, 447 U.S. at 563, 100 S.
Ct. at 2350, 65 L. Ed. 2d at 349). "That protection applies
only insofar as the speech conveys facts that facilitate honest
commercial transactions." Ibid.In Central Hudson, the Court maintained this critical
distinction between speech concerning solely commercial
transactions and other forms of speech that are entitled to more
stringent protections, by delineating a four-part analytical
framework for assessing the validity of restrictions placed on
(continued)
speech are evaluated under an intermediate scrutiny test.")
(citations omitted).
20 A-0417-12T4
commercial speech. The four elements of the Central Hudson test
are as follows:
At the outset, we must determine whether the
expression is protected by the First
Amendment. [1] For commercial speech to
come within that provision, it at least must
concern lawful activity and not be
misleading. [2] Next, we ask whether the
asserted governmental interest is
substantial. If both inquiries yield
positive answers, we must determine [3]
whether the regulation directly advances the
governmental interest asserted, and [4]
whether it is more extensive than is
necessary to serve that interest.
[Central Hudson, supra, 447 U.S. at 566, 100
S. Ct. at 2351, 65 L. Ed. 2d at 351.]
C.
We are therefore guided by Central Hudson's four-part
intermediate scrutiny test in resolving the present appeal. In
applying that test, we are mindful that the United States
Supreme Court issued an opinion in Sorrell v. IMS Health Inc.,
564 U.S. __, 131 S. Ct. 2653, 180 L. Ed. 2d 544 (2011),
indicating that a majority of the justices believed that a more
rigorous test of "heightened judicial scrutiny" should be
applied to certain forms of restrictions on commercial speech.
The Court ruled in Sorrell that a Vermont statute
restricting the sale, use, and disclosure of pharmacy records
that revealed the prescription practices of individual doctors
throughout that state to pharmaceutical manufacturers "must be
21 A-0417-12T4
subjected to heightened judicial scrutiny." Id. at __, 131 S.
Ct. at 2659, 180 L. Ed. 2d at 551. In so ruling, the Supreme
Court rejected Vermont's argument that the statute was merely a
commercial regulation and thus subject to only intermediate
scrutiny. The Court noted that "[t]he First Amendment requires
heightened scrutiny whenever the government creates a regulation
of speech because of disagreement with the message it conveys.
. . . Commercial speech is no exception." Id. at __, 131 S. Ct.
at 2664, 180 L. Ed. 2d at 556 (internal citations and quotation
marks omitted). However, despite this pronouncement, the Court
still applied the traditional Central Hudson analysis for
restrictions on commercial speech (i.e., intermediate, not
heightened, scrutiny), to the facts in Sorrell, and did not
articulate how the "heightened scrutiny" test should be applied
going forward.
Sorrell is distinguishable from the present case in several
respects. First, the Vermont statute banned the sale of
prescriber-identifying information "based in large part on the
content of a purchaser's speech." Id. at __, 131 S. Ct. at
2663, 180 L. Ed. 2d at 554. For example, the information could
be purchased by those who wished to participate in educational
communications, but could not be purchased for purposes of
marketing or advertising. Ibid. The Court noted that the
22 A-0417-12T4
statute specifically "disfavor[ed] marketing, that is, speech of
a particular content." Ibid. Further, in concluding that
heightened scrutiny was required, the Court criticized the fact
that the statute "disfavor[ed] specific speakers, namely
pharmaceutical manufacturers." Ibid.Here, by contrast, N.J.S.A. 34:8B-1 does not favor one type
of speaker over another, as all employers that choose to
advertise for open job positions through print or Internet
postings are equally subject to the terms of the statute. In
addition, the statute regulates a type of speech  advertising
 that the United States Supreme Court traditionally has held to
be "commercial speech" less worthy of constitutional protection
than political speech.
In electing to apply the Central Hudson test to this
appeal, we also find it significant that the United States
Supreme Court has yet to issue an opinion applying the
"heightened scrutiny" test intimated by Sorrell to a restriction
on commercial speech. Moreover, the Court has not clearly
elucidated what that "heightened scrutiny" might entail. In the
wake of the Supreme Court's post-Sorrell silence and inaction,
23 A-0417-12T4
many federal and state courts are continuing to apply the
standard set forth in Central Hudson.17
D.
Applying, as a whole, each of the four Central Hudson
factors to the present statute, we conclude that appellants have
failed to meet their burden of demonstrating that the law
17
For example, a United States District Court noted that:
Certainly, the Sorrell decision reaffirms
the core meaning of the First Amendment
. . . . However, the Supreme Court stopped
far short of overhauling nearly three
decades of precedent, which is clearly
demonstrated by the fact that the opinion
characterizes commercial speech precedence,
including Central Hudson, itself, for
support. This alone is enough to find that
the typical commercial speech inquiry under
intermediate scrutiny remains valid law. If
the Court wished to disrupt the long-
established commercial speech doctrine as
applying intermediate scrutiny, it would
have expressly done so. Absent express
affirmation, this Court will refrain from
taking such a leap.
[King v. Gen. Info. Servs., Inc., 903 F.
Supp. 2d 303, 308 (E.D. Pa. 2012) (internal
citations omitted).]
Other jurisdictions have taken a similar approach. See Educ.
Media Co. at Va. Tech., Inc. v. Insley, 731 F.3d 291, 298 (4th
Cir. 2013); Valle Del Sol, Inc. v. Whiting, 709 F.3d 808, 821
(9th Cir. 2013); United States v. Caronia, 703 F.3d 149, 162-69
(2d Cir. 2012); R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205,
1226 n.4 (D.C. Cir. 2012); Demarest v. City of Leavenworth, 876
F. Supp. 2d 1186, 1194-95 (E.D. Wash. 2012).
24 A-0417-12T4
violates the First Amendment. We analyze the four factors as
follows.
1.
The first prong of the Central Hudson test requires little
discussion. The Department acknowledges that N.J.S.A. 34:8B-1
"regulates a job advertisement posted by Crest that is about a
lawful activity and is not inherently misleading." We accept
that sensible concession, although it does not end the four-part
analysis.
2.
The second prong of the test considers whether the
governmental interest underlying the statute is "substantial."18
18
Appellants allude to a void-for-vagueness argument within
their analysis of the second prong of the Central Hudson test.
However, as the Department points out in its own brief, this
argument hinges incorrectly on statements made by Governor
Christie in his conditional veto message, where he stated that
"the bill, as currently drafted, is too vague and confusing."
Governor's Conditional Veto to Assembly Bill No. 3359, supra, at
1 (emphasis added). All of the changes that the Governor
proposed to alleviate the alleged vagueness of the draft bill
were incorporated into its final approved version.
Further, a plain reading of N.J.S.A. 34:8B-1 convinces us
that the law does not violate the standards of the vagueness
doctrine. See Dome Realty, Inc. v. City of Paterson, 83 N.J.
212, 238 (1980) ("[I]n determining whether local legislation is
impermissibly vague, [courts] are not confined to its literal
terms. The meaning of . . . a general standard may be implied
from 'the entire act in the light of its surroundings and
objectives.'") (quoting Ward v. Scott, 11 N.J. 117, 123 (1952));
State v. Stafford, 365 N.J. Super. 6, 15 (App. Div. 2003) ("The
vagueness doctrine is premised on the notion that the law must
(continued)
25 A-0417-12T4
To be sure, "[t]he burden is on the State to establish the
existence of the substantial governmental interest it sought to
advance" through the enactment of this statute. Hamilton
Amusement Ctr., supra, 156 N.J. at 269. However, "[b]oth the
United States Supreme Court and this Court have held that the
government does not have a heavy burden to satisfy the
substantial governmental interest prong of the Central Hudson
standard. That burden may be satisfied in a variety of
different ways." Id. at 270-71.
For example, in Burson v. Freeman, 504 U.S. 191, 211, 112
S. Ct. 1846, 1858, 119 L. Ed. 2d 5, 22 (1992), the United States
Supreme Court upheld a Tennessee statute prohibiting the
solicitation of votes and the display and distribution of
campaign materials within 100 feet of a polling place, finding
that the government had a substantial interest in keeping the
election process "free from the taint of intimidation and
fraud." The Court reached this conclusion based not on
empirical evidence, but on "[a] long history, a substantial
consensus, and simple common sense." Ibid.(continued)
'give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly.'") (quoting Grayned v. City of Rockford, 408 U.S.
104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227 (1972)).
26 A-0417-12T4
Appellants are correct that the texts of N.J.S.A. 34:8B-1
and -2 and the sponsor's official statement do not explicitly
articulate the "substantial government interest" that the
Legislature sought to address, and the State has not provided
empirical support of the efficacy of the statute. Nonetheless,
we are persuaded that the legislative objective associated with
the statute is a "substantial" one. We reach that conclusion
based upon a fair conception of the deliberately circumscribed
nature of the law's scope.
It is evident that the statutes before us have a modest
aim: to maximize the ability of jobless persons to simply
present their qualifications to potential employers. The
statutes do not pretend to do more than that. They do not, for
instance, require employers to read such applications, or to
bring in any jobless persons for interviews, or to hire any of
those persons in lieu of applicants who already have other jobs.
Moreover, if the statutes had gone to such extra lengths,
they would probably be evaluated under the fairly lenient
constitutional standards for economic regulation under the Due
Process and Equal Protection Clauses.19 It would be ironic
19
See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 10-17, 112 S. Ct.
2326, 2331-35, 120 L. Ed. 2d 1, 13-17 (1992) (applying the
"minimum rationality" test of the Equal Protection Clause for
governmental classifications in economic regulation); Williamson
(continued)
27 A-0417-12T4
indeed if the less ambitious statute adopted by the Legislature
would be more constitutionally vulnerable than a more aggressive
measure.
N.J.S.A. 34:8B-1 and -2 have a less ambitious scope than a
sweeping general anti-discrimination law protecting the jobless.
But that limited scope does not make the governmental interests
insubstantial. Indeed, the substantiality prong of Central
Hudson has frequently been construed and applied to accord
considerable deference to the policy choices of elected
officials.20 We are not a "super-Legislature" empowered to
strike down laws based upon our own policy preferences or our
(continued)
v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88, 75 S. Ct.
461, 464-65, 99 L. Ed. 563, 572 (1955) (similarly applying,
under the Due Process Clause, a rational basis analysis).
20
See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 369,
122 S. Ct. 1497, 1505, 152 L. Ed. 2d 563, 575 (2002) (finding
that the government had a substantial interest in protecting the
effectiveness and integrity of its new drug approval process and
preserving availability of compounded drugs for patients);
Edenfield v. Fane, 507 U.S. 761, 768-70, 113 S. Ct. 1792, 1798-
1800, 123 L. Ed. 2d 543, 553-55 (1993) (finding that a
regulation of solicitation by certified public accountants was
justified by the government's substantial interest in ensuring
accuracy of statements, protecting public from fraud, ensuring
client privacy, and maintaining ethical standards); Metromedia,
Inc. v. City of San Diego, 453 U.S. 490, 507, 101 S. Ct. 2882,
2892, 69 L. Ed. 2d 800, 815 (1981) (finding that a regulation of
billboards furthered the government's interest in traffic safety
and aesthetics).
28 A-0417-12T4
collective personal senses of what we deem important and
substantial.
The inescapably clear premise of these challenged laws is
that, although employers may discard or ignore many resumes and
applications that they receive from jobless applicants,
undoubtedly some currently unemployed applicants will stand out.
At least some of them, from time to time, will possess such
impressive or well-suited credentials that they will receive a
job offer despite an employer's initial reluctance to consider
unemployed applicants. Indeed, the recent severe recession and
the all-too-frequent closure, downsizing or migration of
businesses from our State have unfortunately caused innumerable
very talented workers with vast amounts of skill to find
themselves out of work. A portion of those now unemployed
persons might well be of interest to companies with vacancies,
if they were not discouraged from sending in their applications
by the prohibitive words of job advertisements.21
The Legislature and the Governor reasonably determined that
job-seekers should not be repelled by ads proclaiming that the
unemployed "need not apply." It is not our province to
21
We realize that the parties have stipulated that some
unemployed persons applied to Crest despite the restrictive
wording of its ad. But that circumstance does not mean that
other unemployed would-be applicants were not discouraged.
29 A-0417-12T4
trivialize that objective by declaring that the law does not go
far enough to be worthwhile.
The second prong of substantiality is therefore met.
3.
For related reasons, we are also satisfied that the third
prong of Central Hudson is fulfilled, as the statute "directly
advances the governmental interest asserted." Central Hudson,
supra, 447 U.S. at 566, 100 S. Ct. at 2351, 65 L. Ed. 2d at 351.
We agree with the Department's assertion in its brief that
"[t]he statute, in ensuring that a help wanted ad cannot exclude
unemployed job seekers, directly serves the purpose of
increasing the opportunities for unemployed workers to apply for
work." (Emphasis added). Although the Department has not
presented an empirical study to confirm this assertion, for the
reasons that we have already mentioned, there is a logical nexus
between the terms of the statute and its desired goals. Again,
if the "governmental interest" at stake were more ambitiously
defined as, for example, a material increase in the hiring of
unemployed persons, the Department's ability to satisfy the
third prong on the facts presented would be questionable. But,
as we have noted, if the scope of the statute is conceived more
modestly as a measure to simply get more resumes into the hands
30 A-0417-12T4
of prospective employers, then the law is surely crafted to
advance that goal.
4.
The fourth and final prong of the Central Hudson test
requires a determination as to whether N.J.S.A. 34:8B-1 "is
narrowly tailored to serve the State's asserted interests."
Hamilton Amusement Ctr., supra, 156 N.J. at 276; see also
Central Hudson, supra, 447 U.S. at 566, 100 S. Ct. at 2351, 65
L. Ed. 2d at 351. "[T]he regulation need not be the least
restrictive means of serving the State's . . . substantial
interest." Hamilton Amusement Ctr., supra, 156 N.J. at 277(citations omitted). Rather, the narrow tailoring requirement
is satisfied "'so long as the . . . regulation promotes a
substantial government interest that would be achieved less
effectively absent the regulation.'" Ibid. (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 797, 799, 109 S. Ct. 2746,
2757, 2758, 105 L. Ed. 2d 661, 679, 680-81 (1989)).
We conclude that this final element of the test also weighs
in favor of the Department. We agree with the Department's
argument that the means employed by this statute "are quite
narrowly tailored" because employers are simply obligated to
"refrain from excluding unemployed workers in job advertising,"
31 A-0417-12T4
but may still "advertise job openings in the manner they desire,
and ultimately they can select who they want for the job."
As we have indicated, the manifest purpose of the statute
is to ensure that unemployed residents of the State are not
categorically deterred from applying for job opportunities
merely because they are currently out of work. The statute
reaches no further than what is required to achieve its stated
purpose and, in fact, explicitly allows employers to restrict
potential candidates based on other criteria.
For example, in keeping with the Governor's conditional
veto amendments, an employer is permitted under the statute to
state in an advertisement for a job vacancy that the minimum
qualifications for that particular position include a certain
professional license or certificate, a certain degree or
educational background, or a certain number of years of training
or experience in the field. See N.J.S.A. 34:8B-1. In addition,
employers are not prohibited from stating in an advertisement,
if they so choose, that they will only accept applications from
persons currently employed by them in another position than that
being advertised. Ibid.Because the statute only prohibits an employer from stating
in its ads that current employment is a prerequisite to the
acceptance of an applicant's materials, we concur with the
32 A-0417-12T4
Department's contention that N.J.S.A. 34:8B-1 is no more
extensive than necessary to serve the government's asserted
interest.
III.
We need not say much about appellants' passing contentions
of unconstitutionality that are not grounded upon free speech
principles. In particular, we reject appellants' claim that
N.J.S.A. 34:8B-1 and -2 violate Article I, Paragraph 1 of the
New Jersey Constitution, which provides, in pertinent part, that
"[a]ll persons . . . have certain natural and unalienable
rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing, and protecting property, and
of pursuing and obtaining safety and happiness." N.J. Const.
art. I, ¶ 1.
Appellants contend in this regard that a business owner's
fundamental rights are being "abridged" by this law because the
"implicit object[ive] of this statute" is to "force an employer
to hire the unemployed." We disagree with that
characterization. As the Department explains in its brief, the
statute is "intended to enable unemployed workers to apply for
jobs, and is not aimed at requiring employers to actually hire
unemployed applicants. The law thus takes a very measured
33 A-0417-12T4
approach to the objective it seeks to achieve." (Emphasis
added).
"Insofar as most rights are concerned, a state statute does
not violate [principles of] substantive due process if the
statute reasonably relates to a legitimate legislative purpose
and is not arbitrary or discriminatory." Greenberg v.
Kimmelman, 99 N.J. 552, 563 (1985) (citing Nebbia v. New York,
291 U.S. 502, 537, 54 S. Ct. 505, 516, 78 L. Ed. 940, 957
(1934)). "Briefly stated, if a statute is supported by a
conceivable rational basis, it will withstand a substantive due
process attack." Ibid. (citing Williamson, supra, 348 U.S. at
488, 75 S. Ct. at 464, 99 L. Ed. at 572).
There is clearly such a rational basis underlying the
legislation before us. Appellants' claims to the contrary lack
merit, as do the rest of their various subsidiary claims of
invalidity. We need not comment on them further. R. 2:11-
3(e)(1)(E).22
IV.
Having concluded in this case of first impression that
N.J.S.A. 34:8B-1 and -2 are indeed constitutional, we therefore
22
Because appellants have not prevailed on their constitutional
challenge, we need not reach their belated claim for counsel
fees, a claim which was not asserted before the agency, in their
notice of appeal, or in their appellate case information
statement.
34 A-0417-12T4
sustain the Department's finding that appellants' job
advertisement violated the statutes. Even so, we are not
prepared at present to sustain the $1,000 penalty imposed upon
them by the Department.
The language of N.J.S.A. 34:8B-2 does not require
imposition of the authorized full penalty in all instances of a
proven violation. Instead, the statute authorizes a penalty
that is "not to exceed $1,000 for the first violation."
N.J.S.A. 34:8B-2 (emphasis added).
Moreover, the implementing penalty regulation, N.J.A.C.
12:67-1.4, states as follows:
When the Director finds that an employer or
employer's agent, representative, or
designee has violated the Act, the Director
is authorized to assess an administrative
penalty against the employer in the amounts
that follow:
1. First violation – not more than $1,000[.]
[N.J.A.C. 12:67-1.4(a).]
In addition, the regulation states that:
In determining what constitutes an
appropriate administrative penalty for a
particular violation, the following factors
shall be considered, where applicable:
1. The seriousness of the violation;
2. The past history of previous violations
by the employer;
3. The good faith of the employer;
35 A-0417-12T4
4. The size of the employer; and
5. Any other factors which are deemed
appropriate under the circumstances.
[N.J.A.C. 12:67-1.4(c).]
This language indicates that the imposition of penalties for
violations of N.J.S.A. 34:8B-1 involves an exercise of
discretion.
The Commissioner did not refer to these discretion-guiding
factors23 in his decision imposing the maximum $1,000 penalty.
Nor did the Commissioner have the chance to consider the
equities of the penalty in light of the nature of the
substantial constitutional issues litigated in this appellate
forum. Although appellants' constitutional arguments ultimately
were not successful, we do observe that they were non-frivolous
in nature, and that, by all indications in this record, they
were presented in a good faith effort to test the validity of
this relatively new statute. These distinctive factors are
potentially relevant in determining whether the fine should be
reconsidered.
23
We do not fault the Commissioner in this regard because
appellants chose to focus their argument at that time on the
substantive issues of constitutionality rather than the
calibration of the penalty.
36 A-0417-12T4
In light of the unique posture of this precedential case,
we therefore choose to remand the penalty aspect of this matter
for further consideration by the Commissioner, and for the
express application of the discretionary factors set forth in
the regulation.
Affirmed in part and remanded in part. We do not retain
jurisdiction.
37 A-0417-12T4