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

82 A.3d 258, 434 N.J. Super. 34

• Court: New Jersey Superior Court Appellate Division
• Decided: January 7, 2014
• Docket: A-0417-12
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

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.

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

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