N.J. Legislature Introduces Legislation Imposing Restrictions on Pre-Employment Inquiries into Criminal History of Applicants

by Sheppard Mullin Richter & Hampton LLP

In February 2013, identical bills aimed at reducing pre-employment discrimination against individuals with criminal histories were introduced in the New Jersey Senate and the New Jersey Assembly (S2586 and A3837). Both bills proposed the adoption of the Opportunity to Compete Act (the “Act”) which would impose multiple restrictions and requirements on employers in connection with seeking criminal background information from prospective employees. If the Act is adopted, New Jersey will join a growing list of states, cities, and localities which have passed similar anti-discrimination legislation.

As set forth in the proposed bills, the Act discourages discriminatory conduct throughout the application process, beginning with imposing restrictions on the language employers can use in job postings and advertisements, and concluding with requiring employers to fill out, make available, and maintain records of various forms explaining the rationale behind any consideration the employer made of an applicant’s criminal history. In addition, the Act would prohibit employers from including check boxes on job applications which ask prospective employees to answer whether or not they have any criminal history. Similar prohibitions on application check boxes, known as “ban the box” provisions, have already been adopted in other states, including Massachusetts and Hawaii.

Under the Act, employers would be required to provide a written Notice of Rights to candidates prior to conducting any criminal background checks. These notices would detail candidates’ rights under the Act, as well as what employers would and would not be permitted to consider in making employment determinations. Further, if an employer takes adverse employment action against a candidate after conducting a criminal background check, the Act would require the employer to provide the candidate a written Applicant Criminal Record Consideration Form which would detail what criminal background information was provided to the employer and how the employer took it into consideration in making any adverse determination. Once this information has been provided, the candidate would then be given ten business days to respond. Employers would not be required to wait for a response from the candidate before filling the open position, but they would be required to review any additional information received from the candidate and provide the candidate with another Applicant Criminal Record Consideration Form detailing their decision in the event they maintain the adverse employment decision.

Notably, employers would still be permitted under the Act to ask about certain parts of an applicant’s criminal history once a provisional offer of employment has been made. Further, although the Act does not prohibit employers from considering serious violent crimes, various other levels of criminal history would be permitted to be considered by employers only within certain post-sentencing time frames. However, the Act would preclude employers from considering arrest records, unless the arrests are still pending.

Persons covered under the Act would include candidates for jobs with employers who have five or more employees. Also covered would be candidates for unpaid work averaging fifteen or more hours per week. Although the Act addresses employers who do business, employ persons, or take applications for employment within New Jersey, in order to be covered by the Act, a substantial part of the prospective employment would also be required to physically take place within the state. Finally, violations of the provisions of the Act would result in civil penalties which increase gradually based on the size of the employer, as well as based on the number of violations.

Both bills have moved into their respective Labor Committees and must pass standard bureaucratic hurdles before being enacted. If either bill is passed and the Act is ultimately adopted, the new prohibitions relating to criminal history inquiries could require significant changes to the application process for many New Jersey employers, including revisions to employment applications, job postings, and advertisements. As a result, we will continue to monitor the progress of these bills and keep you apprised of any developments.

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.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.