New Jersey Dept’ of Labor & Workforce Development v. Crest Ultrasonics, 434 N.J. Super. 34 (App. Div. 2014). N.J.S.A. 34:8B-1 “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.” Crest Ultrasonics (“Crest”) was fined $1,000 by the Department of Labor and Workforce Development for advertising in violation of that statute. Crest’s ad said “Must be currently employed.” Crest challenged that fine, asserting that the statute represented an unconstitutional infringement on Crest’s free speech rights and a violation of due process. The Appellate Division, speaking through Judge Sabatino, rejected the constitutional challenge and upheld the Department’s finding of a violation. However, the panel remanded to the Department for reconsideration of the fine imposed.
After exhaustively reciting the legislative history of the statute and noting that other jurisdictions have enacted comparable laws, Judge Sabatino stated that “[t]he power of [a] [c]ourt to declare a statute unconstitutional must be delicately exercised. The strong presumption of constitutionality that attaches to a statute can be rebutted only upon a showing that the statute’s repugnancy to the Constitution is clear beyond a reasonable doubt” (citations omitted). This rejection of judicial activism set the stage for the remainder of the opinion.
The panel applied the four-part intermediate scrutiny test for commercial speech set forth in Central Hudson Gas & Electric Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980), a test that Judge Sabatino stated also applies in this circumstance under the New Jersey Constitution’s free speech guarantee. A form of “heightened scrutiny,” mentioned (but not applied or fully explained) in Sorrell v. IMS Health, Inc., 564 U.S. ___ (2011), was rejected here for multiple reasons, among the most important of which was that, unlike in that case, “N.J.S.A. 34:8B-1 does not favor one type of speaker over another,” since it applies to all employers who advertise job openings. Judge Sabatino also cited numerous cases from other jurisdictions that have continued to apply Central Hudson even after Sorrell.
The Department did not dispute that Crest had satisfied the first part of the Central Hudson test: the statute “regulates a job advertisement posted by Crest that is about a lawful activity and is not inherently misleading.” But Crest did not carry its burden as to the other three prongs of the test. The governmental interest underlying the statute– “to maximize the ability of jobless persons to simply present their qualifications to potential employers”– is a “substantial” interest, and the statute is modest in advancing that interest and going no further since there is no requirement that employers interview or hire any such candidates. The statute thus “directly advances” the State interest and is “narrowly tailored” to do so. As a result, there was no free speech violation here.
Judge Sabatino then easily dispatched Crest’s due process argument. Crest contended that its fundamental rights were being “abridged” because the “implicit object[ive] of this statute is to force an employer to hire the unemployed.” As Judge Sabatino reiterated, “the statute is intended to enable unemployed workers to apply for jobs, and is not aimed at requiring employers to actually hire unemployed applicants” (emphasis by the Court). Thus, there was plainly a rational basis for the statute, which defeated the due process claim.
Nor was the statute void for vagueness. After explaining the “void-for-vagueness” doctrine, Judge Sabatino noted that Crest’s arguments attacked a prior incarnation of the statute that had been vetoed by Governor Christie as “too vague and confusing.” The enacted version did not suffer from vagueness problems.
Though Crest’s constitutional arguments failed, the panel remanded the matter to the Department to reconsider the fine. The $1,000 fine was the maximum permitted, and the Department had not taken into account the factors stated in an implementing regulation that guide the Department’s discretion in determining the proper amount of the fine. The panel directed that, on remand, the Department consider and apply those factors.
This is a classic example of judicial modesty in the face of a challenge to a legislative enactment. As Judge Sabatino rightly stated, the courts “are not a ‘super-Legislature’ empowered to strike down laws based upon our own policy preferences or our collective personal senses of what we deem important or substantial.”