NJ’s Proposed Employment Inquiry Restrictions Could Challenge Businesses, Says Corvo

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Legislation aimed at assisting unemployed applicants would likely spur liability lawsuits, LeClairRyan attorney warns

A New Jersey legislative bill aimed at helping unemployed job seekers to secure work could make life more difficult for employers, warns Laura H. Corvo, a partner in national law firm LeClairRyan's Newark office.

“The proposed bill, S-1440, would basically ban employers from inquiring about a job-seeker’s current employment status,” explains Corvo, who focuses on employment litigation and employment counseling. “At a time when job creation remains stubbornly slow, the intention of the proposed legislation is to reduce the hiring stigma associated with unemployment. But as it stands, the bill would increase the burden on New Jersey businesses and potentially increase their exposure to ‘failure-to-hire’ lawsuits.”

Under the bill, during the hiring process, a company would be prohibited from using an applicant’s current employment status as a factor in hiring decisions. Employers that violate the prohibition would face a $1,000 penalty the first time, a $5,000 penalty for a second offense and a $10,000 penalty for any subsequent offense.

“We’re seeing more laws like this being considered or passed,” notes Corvo. “In 2011, New Jersey passed a law, N.J.S.A. 34:8B, that bans companies from publishing job advertisements which discourage unemployed from applying. About 12 states have floated the idea of expanding protections for jobless individuals, similar to the one currently being considered here. So even if this proposed bill doesn’t pass in New Jersey this year, some form of it is likely to be enacted in the near future.”

These kinds of laws are relatively new, and many employers have not taken the necessary steps to shield themselves, warns Corvo. New York City, for example, amended its Human Rights Law (N.Y.C. Admin. Code. §§ 8-107(21)(a)(1)-(2)) in 2013 to prohibit employers from discriminating against the unemployed. It exposes violators to both fines and private causes of action.

“Businesses in New Jersey should become familiar with the nuances of these proposed and existing laws, especially if they engage in activity in New York City or plan to expand across the river,” counsels Corvo. “Even if they’re not planning on that, they may also wish to consider revisiting their policies to ensure they’ll be in compliance with applicable regulations if they are enacted here.”

Employers may wish to review their employment advertisements and their policies—in addition to training their human resources team and other staff—to ensure that the interview process will not result in eliciting information about a job applicant’s current employment status, she advises.

“Also, document your decision-making process,” Corvo says. “Make it clear that you are looking at an applicant’s skill sets and other qualifications that directly relate to the requirements of the job that is being posted.”

About LeClairRyan
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Colorado, Connecticut, Maryland, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit http://www.leclairryan.com.


Press Contacts: At Parness & Associates Public Relations, Marty Gitlin (631) 765-8519, mgitlin(at)parnesspr.com or Bill Parness, (732) 290-0121, bparness(at)parnesspr.com

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