The Opportunity to Compete Act, which seeks to help individuals with criminal histories reintegrate into the workplace, was recently signed by New Jersey Governor Chris Christie. The “ban the box” law will prohibit most New Jersey employers from asking applicants about their criminal histories until after a first interview. New Jersey joins numerous states and localities that have enacted such a law.
The new law will take effect March 1, 2015, making it unlawful for public and private employers with 15 or more employees to do either of the following:
Inquire about or require an applicant to disclose any information regarding the applicant’s criminal record during the application process and first interview
Publish advertisements that purport to exclude applicants who have been arrested or convicted of a crime or offense
The law contains exceptions for inquiries during the initial application process for positions in law enforcement, corrections, the judiciary, homeland security or emergency management, and for positions where a criminal history record background check is required by law.
Under this law, job applications that contain a box to check if the applicant has been convicted of a crime, or that ask about arrests or convictions in any manner, must be revised. However, the law does not prohibit employers from making inquiries and running criminal background checks on applicants later in the hiring process. It also does not bar adverse action by employers against applicants based on the applicant’s criminal record, provided that the record has not been expunged and the action is consistent with other applicable laws, rules, and regulations. Of course, employers should continue to handle any criminal background check and all information about criminal records in a manner consistent with their obligations under the Fair Credit Reporting Act and state and federal anti-discrimination laws.
The law prohibits counties and municipalities from adopting ordinances regarding criminal histories in the employment context, except for ordinances adopted to regulate municipal operations. It also preempts such ordinances adopted before the effective date of the Opportunity to Compete Act, such as Newark’s 2012 ordinance, which contains hiring process restrictions beyond “ban the box.”
The law signed by Governor Christie is a scaled-back, more business-friendly version of the original bill. Earlier proposed provisions would have prohibited employers from conducting criminal background checks before a conditional job offer and limited the offenses that could be considered by an employer. Also removed was the individualized assessment requirement, which would have required employers to document that they evaluated the results of a background check against specifically identified factors, such as the nature of the offense and how long ago it occurred and information provided by the applicant pertaining to rehabilitation. While these factors were removed from the New Jersey law, they are familiar to employers from the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Our previous alert on this guidance is available here.
Violations of the law will result in civil penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. Importantly, the law excludes a private cause of action against an employer by an applicant.