Will New Jersey Go “Ban The Box” And Beyond? New Jersey Takes Step To Prohibit Employers From Asking About A Job Applicant’s Criminal History

by Mintz Levin - Employment Matters

Recently, in a 6-3 vote, New Jersey’s Assembly Labor Committee advanced a bill (A-3837), known as the Opportunity to Compete Act, that would prohibit New Jersey employers with 15 or more employees from asking candidates about their criminal history on employment applications, and from conducting criminal background checks on applicants prior to a conditional job offer. If passed, this legislation would become one of the toughest “ban the box” measures in the nation (derived from the ubiquitous check box on employment applications inquiring whether an applicant has a criminal record), and would place several new administrative burdens on employers. New Jersey would join the 64 states, counties and cities (including Newark, New Jersey) that have already enacted laws aimed at benefiting job seekers with a criminal history. And many states (including New York) prohibit employers from disqualifying an applicant based on a conviction absent a clear nexus between the nature of the conviction and the job sought.

Under the proposed legislation, only after the employer determines the candidate is qualified and provides a conditional job offer, may it inquire about and consider the individual’s criminal history. Then, before the employer may look into the candidate’s criminal history, it must first provide the candidate with a written notice of the inquiry (along with a “Notice of Rights) and obtain the candidate’s consent.

The bill authorizes employers to consider in their employment decisionmaking process convictions for certain serious crimes regardless of when the crime occurred. These crimes include murder or attempted murder, arson, a sex offense for which the offender served time in State prison and is required to register as a sex offender, robbery, kidnapping, human trafficking, possession of weapons, burglary, aggravated assault and terrorism. Separately, employers may only consider other crimes of the 1st through 4th degree if the crime was committed within the previous 10 years. Employers may also consider convictions for disorderly persons offenses that occurred within the last 5 years and pending criminal charges until the case is dismissed. The bill further provides that if any of the candidate’s criminal history is subject to consideration by employers due to the fact that it occurred within 10 years for crimes of the 1st through 4th degree, or 5 years for disorderly persons offenses, then the employer may also consider any prior criminal history, regardless of when it occurred.

Under the bill, when making an employment decision, employers may not consider or require a candidate to disclose or reveal any arrest or criminal accusation made against the candidate which is not then pending or which did not result in a conviction. Records which have been erased or expunged, records of an executive pardon or legally nullified records may not be considered by employers, nor may the employer consider an adjudication of delinquency of a juvenile, any violation of a municipal ordinance or any record which has been sealed.

The proposed legislation requires employers to make a good faith effort to discuss with the candidate any questions or concerns related to the candidate’s criminal history and provide the candidate with an opportunity to explain and contextualize any crime or offense, provide evidence of rehabilitation, and rebut any inaccuracies in the criminal history.

In deciding whether to hire a candidate, employers must consider the results of any criminal history inquiry in combination with factors such as: (1) information provided about the degree of the candidate’s rehabilitation and good conduct; (2) information provided about the accuracy of the criminal record; (3) the amount of time that has elapsed since the conviction or release from custody; (4) the nature and circumstances surrounding the crime(s); and (5) the duties and settings of the job. This last factor—job-relatedness—is critical, as employers may not disqualify a candidate if the nature of his or her conviction bears no relationship to the job sought. The reasonable consideration of these factors must be documented by employers on a “Criminal Record Consideration Form.”

If an employer makes an adverse employment decision, including rescinding a job offer, after a discussion of a candidate’s criminal history, the employer must provide the candidate in one package by registered mail: (1) written notification of the adverse employment decision; (2) a copy of the results of the criminal history inquiry; and (3) a completed copy of the Criminal Record Consideration Form.

A candidate who received an adverse employment decision has 10 business days after receipt of this written information to provide evidence to the employer related to the accuracy and relevance of the results of the criminal history inquiry. Employers may, but are not required to, hold the position open for the candidate. Employers who uphold an adverse employment decision after considering any additional information provided by the candidate are required to provide to the candidate a written notice of the final decision within 45 days of receipt of the additional information.

There is good news for employers here: the bill does not provide applicants with the ability to sue them in court for a violation of the law. Instead, the applicant would have to file a complaint with the New Jersey’s Division on Civil Rights (“DCR”) in the Department of Law and Public Safety, and the DCR may impose civil fines ranging from $500 to $7,500 depending on the number of employees the employer has and whether the employer has committed previous violations. Additionally, as noted above, the bill does not apply to smaller employers with under 15 employees. Moreover, employers can take solace in that the bill would give employers the highest protection against negligent hiring/retention suits of any state in the nation in the form of a “grossly negligent” standard, meaning that there must be a finding that the employer consciously acted with a reckless disregard for the safety of others in its hiring decision.

There is no certainty that the proposed Opportunity to Compete Act will be passed into law in its current form or any other form for that matter. Governor Chris Christie, who could very well exercise his veto power, has not indicated whether or not he supports the bill. Needless to say, we will closely monitor this legislation.

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.

© Mintz Levin - Employment Matters | Attorney Advertising

Written by:

Mintz Levin - Employment Matters

Mintz Levin - Employment Matters 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.