Effective March 1, 2015, any employer with 15 or more employees that does business in New Jersey or accepts applications for employment within New Jersey is prohibited from inquiring into an applicant’s criminal history record until the employer conducts an interview of the applicant. On August 11, 2014, Governor Christie signed into law what is commonly referred to as the “ban-the-box” bill, so named because it prohibits an applicant from being disqualified from consideration for a job opening early in the hiring process simply because the applicant answered “yes” to an inquiry about criminal convictions. Employers may not publish in a job posting or enforce a policy against consideration of applicants with a criminal history. Employers may still use background checks to ensure that job applicants comply with job requirements and inquire about criminal background after the interview. The term applicant is defined broadly to include anyone considered for employment, anyone who requests consideration for employment, and even current employees, with the proviso that the employment must be entirely or substantially in New Jersey.
Once the law takes effect, an employer may ask about and consider a job applicant’s criminal history after it interviews the applicant with a key exception being that a covered employer may not refuse to hire an applicant on the basis of a criminal record that has been expunged or erased through executive pardon. Certain employers such as law enforcement, corrections bureaus, the judiciary, the U.S. Government, emergency management, and employers whose jobs by law disqualify an applicant with a criminal conviction are exempt from these requirements. Also exempt are domestic workers, independent contractors, directors and trustees.
The new law specifically bars any private cause of action for a violation. However, an employer is subject to civil penalties, starting at $1,000 for the first violation, $5,000 for the second violation, and $10,000 for the third and subsequent violations.
These new requirements take effect in six months. Employers should begin consulting with legal counsel to ensure that their hiring process forms, job applications and hiring policies are in compliance with the new legislation. Legal compliance should include educating managers, supervisors, and recruiting personnel regarding these new standards to ensure they are pushed down into the organization.