New Jersey enacts “Ban-the-Box” law, limiting inquiries about criminal history during first phase of hiring process

New Jersey has enacted a law prohibiting employers with 15 or more employees from asking about a job applicant’s criminal history until after a first interview, unless the employee voluntarily discloses criminal history information, or another law precludes an individual with a criminal history from holding the job. The law will take effect March 1, 2015.

The New Law

Under the new law, job advertisements may not state that a criminal history will disqualify an applicant, and an employer may not include any questions about criminal history on a job application. (The law thus bans the box that some employment applications require candidates to check if they have a criminal history.) Exceptions apply when other laws disqualify individuals with criminal records from holding the job.

The law allows employers to ask about a candidate’s criminal history after the initial interview and to base hiring decisions on criminal history information. However, employers must still observe procedural or substantive requirements that may be imposed by other state or federal laws, such as Title VII and the Fair Credit Reporting Act.

No Private Cause of Action is Created

The law states that it does not create a private cause of action. It may be enforced only by the Commissioner of Labor and Workforce Development, and penalties are limited to $1,000, $5,000, and $10,000 for the first, second, and each subsequent violation.

Local “Ban-the-Box” Laws are Preempted

The law preempts any municipal “ban-the-box” ordinances, except that a municipality can apply such an ordinance to hiring for jobs in the municipality’s own operations. Thus, ordinances such as Newark’s “ban-the-box” ordinance, which was much more restrictive than the new state law, will be preempted. Employers in New Jersey will have one, uniform set of rules with respect to inquiries about criminal history during the hiring process.

Action Items for Employers

Employers hiring in New Jersey should take steps to eliminate any references to criminal history in job advertisements, job applications, and first interviews, by March 1, 2015. Employers who use criminal background checks or base hiring decisions on criminal history information obtained from an applicant after the initial interview must still comply with federal and state laws regarding such inquiries and hiring decisions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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