CLIENT UPDATE

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August 19, 2014

New Jersey Enacts “Ban the Box” Law for Private Employers

Effective March 1, 2015, the New Jersey Opportunity to Compete Act (“Act”) will prevent most private employers in the State of New Jersey from inquiring about a prospective employee’s criminal history prior to the completion of the applicant’s first interview.  In enacting this “ban the box” law, New Jersey joins a growing number of states (Hawaii, Illinois, Massachusetts, Mineola and Rhode Island) and cities (Philadelphia, PA, Newark, NJ, Buffalo, NY, Seattle, WA, San Francisco, CA, Baltimore, MD and Rochester, NY) that prohibit employers from considering an applicant’s criminal history during the initial stages of the employment application process.  The Act preempts any ordinance, resolution, law, rule or regulation including the previously-enacted Newark, NJ “ban the box” ordinance, regarding criminal histories in the employment context.

Covered Employers & Applicants

The Act applies to employers, including employment agencies, who (a) have 15 or more employees over 20 calendar weeks and (b) conduct business, employ individuals or accept applications for employment within the State of New Jersey.  “Applicants” include applicants for paid employment, including seasonal, temporary and per diem employment, as well as applicants for internships and apprenticeships.

Key Prohibitions

Employers covered by the Act are prohibited from inquiring, either orally or in writing, as to an applicant’s criminal record during the “initial application process” – that is, from the time the employer or the applicant inquires about prospective employment or a job vacancy through the completion of a first interview of the applicant.

Pursuant to the Act, employers may not post any advertisement stating “the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses,” unless the opening is for a position exempted from the Act detailed below.   Employers may not require applicants, including internal applicants, to complete any employment application that contains a prohibited inquiry.  The Act prohibits employers from inquiring about an applicant’s criminal history during the first interview of the applicant, whether that interview is conducted in person, by phone or any other method. 

After completion of the “initial application process,” employers may inquire into an applicant’s criminal record in a manner consistent with applicable state and federal law, and may consider the conviction of certain crimes, such as homicide (including manslaughter and death by auto), robbery, sex offenses, weapons possession and aggravated assault, regardless of the date of sentence or the release from incarceration.  However, even after the initial employment application process ends, employers are still prohibited from inquiring into and considering (a) expunged criminal records; (b) arrests that did not result in conviction; (c) disorderly conduct convictions that occurred five (5) or more years earlier; and (d) conviction of crimes of the fourth degree that occurred 10 or more years earlier.  The Act expressly allows employers to refuse “to hire an applicant for employment based upon the applicant’s criminal record,” unless the record has been “expunged or erased through executive pardon, provided such refusal is consistent with other applicable laws, rules and regulations.”

Exceptions

The prohibitions of the Act do not apply to positions:

  •  in law enforcement, corrections, the judiciary, homeland security, or emergency management;
  • where a criminal history record background check is required by law, rule or regulation not preempted by the Act, or where an arrest or conviction would preclude or restrict the individual from holding the job;
  • where any law, rule or regulation not preempted by the Act restricts the employer’s ability to engage in specified business activities based on the criminal records of its employees; or
  • designated to be part of a program designed to encourage the employment of persons who have been arrested or convicted of criminal offenses.

“Persons employed in the domestic service of a family or person at the person’s home, any independent contractors, or any directors or trustees” are exempted from the definition of “employee,” and therefore coverage under Act.

If an applicant voluntarily discloses criminal record information during the initial application period, the employer may make further immediate inquiries.

Remedy for Violations

There is no private cause of action against employers for violations of the Act.  The sole remedy provided for by the Act is a monetary penalty of no more than $1,000 for a first violation, $5,000 for a second violation and $10,000 for each subsequent violation.

Takeaway for Employers

New Jersey employers should take steps to ensure compliance with the Opportunity to Compete Act before March 1, 2015, including:

  • revising employment applications to remove all questions relating to an applicant’s criminal history for positions that are covered by the Act;
  • identifying any exempt positions where inquiry into criminal history remains lawful;
  • training recruiters, human resources personnel and others who conduct interviews not to ask an applicant about his/her criminal history and/or conduct criminal background checks until after an applicant’s initial interview; and
  • confirming that any employment agencies used by the employer have revised their forms and procedures to ensure compliance with the Act.

Employers should also take steps to ensure that any criminal background check ultimately conducted adheres to the requirements of the Fair Credit Reporting Act and any other state and local requirements.