                NOT FOR PUBLICATION WITHOUT THE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
