Criminal background questions on employment applications will no longer be permitted in New Jersey, effective March 1, 2015. New Jersey joins Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island to become the sixth state to ban the box for private employers. As we blogged here, the Illinois law takes effect January 1, 2015.
Several cities have also passed ban-the-box laws that apply to private employers, including Baltimore, Buffalo, Indianapolis, Philadelphia, Rochester, San Francisco, and Seattle. The list of cities with ban-the-box laws continues to expand each year.
On August 11, 2014, Gov. Chris Christie signed the Opportunity to Compete Act. This New Jersey ban-the-box law will apply to private employers with 15 or more employees and to employment agencies. It will prohibit questions about criminal history until after the employer has conducted a first interview, whether in person or by any other means. The law does not define what constitutes an interview and does not address what happens if no interview is required for the position. Administrative guidance by the Commissioner of Labor and Workforce Development may be issued at some point to address these scenarios.
These restrictions will not apply, however, to positions where federal or state law prohibits employment of individuals with certain convictions. They also will not apply to positions in law enforcement, corrections, the judiciary, homeland security, or emergency management.
New Jersey employers will be permitted to inquire further about criminal history if the applicant voluntarily discloses a criminal record during the initial application process.
The New Jersey law sets forth a series of increasing monetary penalties for noncompliance, in amounts not to exceed $1000 for a first violation, $5000 for a second, and $10,000 for a third. There is no private right to bring a civil action, and any enforcement action must be brought by the Commissioner of Labor and Workforce Development.
All employers in New Jersey, Illinois, Hawaii, Massachusetts, Minnesota, and Rhode Island should take steps to ensure that criminal background questions are removed from their employment applications in those states. Employers who operate in cities or counties with local ban-the-box laws should take the same steps in those locales.
Hiring managers in ban-the-box jurisdictions should also be trained to avoid making criminal background inquiries until after any job interview has been completed.
Employers with operations in New York State should continue to be mindful of their obligations under New York Correction Law Article 23-A, which imposes various requirements on New York employers before they can make a decision based on an applicant’s criminal record.