New Jersey has become the twelfth state to pass “ban the box” legislation, which prohibits employers from inquiring into a job applicant’s criminal history during the initial stages of the interviewing process. The law, titled “The Opportunity to Compete Act,” was signed by Governor Chris Christie on August 11, 2014 and went into effect on March 1, 2015. The Act bars employers with 15 or more employees from asking about a job applicant’s criminal history until after his or her first interview. Additionally, employers are prohibited from posting job advertisements stating that individuals who have been arrested or convicted or a crime will not be considered for employment. However, there are exceptions which allow employers to inquire about an employee’s criminal history during the interview process if the work involves law enforcement or if the work cannot be legally performed by a person with a criminal record under state or federal laws.
Employers who violate this law face civil penalties ranging from $1,000 to $10,000 depending on the frequency of its violations.
As we previously reported, the New Jersey Assembly Labor Committee advanced the Opportunity to Compete Act last winter, which would limit the use of criminal background checks in the hiring process. On August 11, 2014, Governor Christie signed this bill into law. The Opportunity to Compete Act will become effective on March 1, 2015 and will prohibit a covered employer from inquiring and using a job applicant’s criminal history during the hiring process. The legislation makes clear, however, that an employer can make inquiries regarding a prospective employee’s criminal record after the initial employment process has ended (i.e., post-interview).
Last month, the New Jersey Assembly Labor Committee advanced “The Opportunity to Compete Act,” commonly known as the “Ban the Box” bill, which if passed, will afford employment candidates with criminal histories some legal protection. Specifically, the new bill will prohibit an employer (with less than 15 employees) from inquiring about a candidate’s criminal history in connection with any employment decision during the pre-application or application process. An employer, however, is authorized to consider an applicant’s criminal history after the candidate has received an offer of conditional employment. In this event, the bill requires that an employer obtain the candidate’s written consent to conduct a background check and provide the candidate with a “Notice of Rights” outlining the protections that the candidate is entitled under the bill. If an employer wishes to rescind its offer of conditional employment based upon the applicant’s criminal history, the bill requires that the employer give written notification of the adverse employment decision to the candidate as well as a copy of the results of the criminal history inquiry, a completed Applicant Criminal Record Consideration Form and another copy of the “Notice of Rights.” The applicant will then be entitled to submit a response to the employer within 10 business days after receipt of the documentation above, to which the employer must respond within 45 days.
Failing to comply with the provisions of the bill subjects an employer to fines ranging from $500 to $7,500 depending on the number of employees within the company and whether the employer has committed previous violations.
We will continue to monitor the developments of this proposed legislation.