Act Now Advisory: New Jersey's Ban-the-Box Legislation Is Signed Into Law

by Epstein Becker & Green
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On August 11, 2014, New Jersey Governor Chris Christie signed into law statewide ban-the-box legislation, formally titled "The Opportunity to Compete Act" ("Act"). The Act becomes effective on March 1, 2015.[1] Overall, the Act is less burdensome than the ban-the-box laws of other states and municipalities.

Prohibited and Permissible Inquiries and Actions

The Act prohibits employers from making any oral or written inquiry regarding an applicant's criminal record until after the applicant's first interview—i.e., the "initial application stage"—and it prohibits employers from stating in help-wanted advertisements that "the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses," unless the opening is for a position exempted from the Act.

Employers are permitted to inquire about an applicant's criminal record after the initial application stage. Also, employers may make immediate inquiries if an applicant voluntarily discloses criminal record information during the initial application period.

The Act expressly allows employers to refuse "to hire an applicant for employment based upon the applicant's criminal record," unless the record has been "expunged or erased through executive pardon, provided such refusal is consistent with other applicable laws, rules and regulations."

The Act does not include posting or notification requirements.

Covered Employers

The Act applies to employers that have 15 or more employees and that do business, employ persons, or take applications for employment within New Jersey. Job placement, referral, and employment agencies are included.

Exemptions

The law does not apply to positions:

  • in law enforcement, corrections, the judiciary, homeland security, or emergency management;
  • where a criminal history record background check is required by law, or where an arrest or conviction would preclude or restrict the individual from holding the job; or
  • designated to be part of a program designed to encourage the employment of persons who have been arrested or convicted of criminal offenses.

Exempted from the definition of "employee," and therefore coverage under Act, are "persons employed in the domestic service of a family or person at the person's home, any independent contractors, or any directors or trustees." Interns and apprentices, however, are included in the definition of "employee."

Civil Penalties

The Act provides for the assessment of civil penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for subsequent violations.

No Private Cause of Action

Notably, however, the Act emphatically states that it will not "be construed as creating, establishing or authorizing a private cause of action" against an employer for violation of the law. Moreover, evidence that an employer has violated, or is alleged to have violated, the Act is expressly inadmissible in legal proceedings, other than proceedings to enforce the provisions of the Act.

Prohibition and Preemption of Conflicting Local Laws

Of additional note, the Act bars counties and municipalities from adopting any ordinance, resolution, law, rule, or regulation that conflicts with the Act and expressly preempts any such existing law. Thus, as of March 1, 2015, Newark's ban-the-box ordinance will be effectively nullified.[2]

What Employers Should Do Now

Before March 1, 2015, New Jersey employers should:

  • review their employment positions to determine whether any job falls within an exemption;
  • revise New Jersey job applications to remove questions seeking criminal background information for positions that are covered by the Act or, if a multistate application is used, clarify that applicants for positions in New Jersey should not respond to questions seeking criminal background information;
  • train recruiters and others who conduct interviews not to ask about criminal history or conduct criminal background checks until after an applicant's initial interview; and
  • confirm that employment agencies used by the employer are aware of the law and have revised their forms and procedures accordingly.

In addition, New Jersey employers may wish to take note of other legislation on the horizon, including:

  • a bill passed by the Legislature that prohibits employers from discriminating against the unemployed (which is awaiting Governor Christie's signature), and
  • a statewide paid sick leave bill that is awaiting debate this fall.

ENDNOTE

[1] The effective date is "the first day of the seventh month next following the date of enactment."

[2] Provisions of Atlantic City's ban-the-box ordinance that conflict with the Act will be similarly preempted, but that ordinance applies only to public employees.

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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