On August 11, 2014, Governor Chris Christie signed into law the Opportunity to Compete Act, New Jersey’s version of “ban the box.” When the law takes effect on March 1, 2015, companies who employ 15 or more employees will be prohibited from inquiring orally or on a job application about a job applicant’s criminal history until after the employer conducts a first interview. The Act will also prohibit employers from posting job advertisements that exclude applicants with criminal histories from consideration. Employers will be permitted to inquire about an applicant’s criminal history after the first interview. Moreover, employers may still refuse to hire an applicant based upon the applicant’s criminal record, unless that record has been expunged or erased through executive pardon.
The Act contains several exceptions. It does not apply to those applying for positions in law enforcement, corrections, the judiciary, homeland security or emergency management. It also is inapplicable to any position requiring a background check by law or where a criminal history precludes a person from holding a position by law.
Finally, the law prevents local municipalities from implementing local ban the box ordinances that conflict with the new state law, and any local ban the box law currently in effect, such as the law in Newark, will be preempted as of March 1, 2015.
Employers who violate New Jersey’s ban the box law will be subject to a penalty of no greater than: $1,000 for the first violation, $5,000 for a second violation, and $10,000 for each subsequent violation. The law does not create a private right of action.
New Jersey is now the sixth state to pass its own ban the box law applicable to private employers. Massachusetts’ and Hawaii’s laws have been in effect for several years. Minnesota’s and Rhode Island’s laws became effective on January 1, 2014 and Illinois’ ban the box law becomes effective on January 1, 2015. To date, seven cities have passed their own ban the box laws, with at least four becoming effective in 2014 alone: Philadelphia, Newark, N.J., Seattle, Buffalo, N.Y., San Francisco, Baltimore and Rochester, N.Y.
First, New Jersey employers should remove any criminal history questions from employment applications. Second, given the recent uptick in state and local ban the box laws across the country, multistate employers outside of New Jersey should seriously consider removing criminal history questions from employment applications.
For now, state and local law governs when in the hiring process an employer may inquire about an applicant’s criminal history. To further complicate matters, the 13 existing ban the box laws all differ in terms of timing. Massachusetts’ law bars employers from asking about criminal history prior to the interview stage. Hawaii’s law bars employers from obtaining/considering an applicant’s criminal history until after extending a conditional offer of employment. New Jersey’s law falls in the middle, with inquiries prohibited until after the first interview. As a result, multistate employers should consult with counsel as to the best time during the hiring process to seek information regarding an applicant’s criminal history.