Top 3 Job Posting Issues for New Jersey Employers

For employers, it is easier than ever to reach millions of potential job applicants but, at the same time, there are more restrictions than ever for how an employer does so. It is becoming increasingly common for job postings to have even more restrictions than the general employment and anti-discrimination requirements. The penalties for violating these rules can range from government enforcement and fines to private lawsuits with significant penalties—which often include paying for the employee’s lawyer as well as the employer’s.

There is no quick and easy list for every employer. There are numerous laws which each have their own requirements, rules for which employers are covered, and exceptions. Employers should speak with an employment lawyer about their particular facts and circumstances.

To avoid unnecessary complications, here are three issues New Jersey employers should keep in mind when posting a job opportunity:

1.   Complying with Pay Transparency Laws

New Jersey’s new pay transparency law, N.J.S.A. § 34:6B-23, will go into effect on June 1, 2025. This law requires job postings to:

• Be shared with current employees, and
• Include certain information.

Specifically, under this new law, any advertisement or posting an employer makes for a position that could be considered a promotion for current employees must be shared with those employees currently in the affected department. This will not apply to unforeseen emergency promotions or promotions based on a specific employee’s years of experience or performance.

In addition, all job postings must include a general description of benefits and other compensation programs for the position, including at least a range for the hourly wage or salary—although the employer is free to increase that compensation when it comes time to make an offer. This law will apply to most employers who do business within New Jersey, including many who are based outside of the state, with some exceptions.

Even employers who are not covered under this new state law may fall under similar local laws such as Jersey City’s Ordinance 22-026. That ordinance also requires job postings to include wage or salary information but covers some employers who would not be subject to N.J.S.A. § 34:6B-23.

2.   Avoiding Discriminatory Job Postings

Multiple New Jersey laws prohibit employment discrimination, such as the New Jersey Law Against Discrimination (NJLAD). However, under N.J.S.A. § 10:5-12(c), the rules for what an employer may include in a job posting are even more stringent.

New Jersey job postings may not suggest, even indirectly, that job applicants may be screened on the following categories unless based upon a bona fide occupational qualification:

• Race, creed, color, national origin, ancestry
• Age
• Marital, civil union, or domestic partnership status
• Affectional or sexual orientation
• Gender identity or expression
• Sex
• Disability
• Nationality
• Pregnancy or breastfeeding
• Liability for service in the Armed Forces of the United States

There are similar laws for additional categories, which often have different requirements or applicability. For example, employers are not explicitly barred from mentioning the following subjects in a job posting, but are prohibited from discriminating on these subjects generally and so should still avoid mentioning them:

• Tobacco use (N.J.S.A. § 34:6B-1)
• Salary history (N.J.S.A. § 34:6B-20(a))
• Genetic information, atypical hereditary cellular or blood trait (N.J.S.A. § 10:5-12(a))
• The employee’s willingness to disclose social media user names or passwords (N.J.S.A. § 34:6B-6)

Conversely, there’s at least one topic where employers are allowed to discriminate but may not screen applicants up front—criminal history (N.J.S.A. § 34:6B-14, 15). While employers may deny an applicant based on criminal history, they may not publicize the fact that any criminal record will be disqualifying, nor may they ask into an applicant’s criminal history until after the applicant is selected.

Many of these laws have differing requirements, apply to different employers, and have different standards for exceptions. It is important for employers to confirm the requirements of their particular facts and circumstances.

3.   Avoiding Inter-State Complications

As remote work opportunities have become more common, employers have had to struggle more than ever with the shifting landscape across the country. Employers who are willing to hire employees to work across state lines have always had to consider the implications of those other states’ wage and hour laws, possible tax implications, and so on, but those considerations do not need to be made until after a prospective employee has been selected and the relevant other state is known.

Over the past five years, more and more states—and even local municipalities—have begun enacting requirements for initial job postings. To date, at least fourteen other states and at least seven local municipalities have some sort of pay transparency law in place (including the state of New York and, separately, both New York City and Westchester County).

Employers willing to hire remote employees in another state must consider the requirements of each jurisdiction they are willing to hire in and carefully word their job postings to avoid the appearance of attempting to hire applicants in a locality where their posting does not satisfy the local requirements.

If you have questions about complying with state employment laws including New Jersey’s pay transparency law, please contact Jacob Narva, Esq.