Employers doing business in Newark have one more obligation to worry about when it comes to conducting criminal background checks. The City of Newark has enacted an ordinance (“Ordinance”) intended to reintegrate formerly incarcerated people back into the Newark community. (See the Ordinance here.) As such, the Ordinance limits the use of criminal history inquiries in employment, housing, and licensing. Employers affected by the Ordinance are those that have 5 or more employees and either do business, employ persons, or take applications for employment within the City of Newark, including labor organizations and job placement and referral agencies. Entities employing unpaid interns are not off the hook; “employment” includes unpaid work.
What does the Ordinance do?
In general, the Ordinance:
- prohibits employers from making any pre-application criminal history inquiries;
- prohibits employers from making any inquiries about the applicant or employee (“candidate”) unless they have made a good faith determination that the relevant position is of such sensitivity that a criminal history inquiry is warranted;
- limits the amount of information the employer may seek in the criminal history inquiry;
- mandates the factors employers must consider when evaluating candidates;
- requires that employers provide the candidates with certain notices and an opportunity to respond to potential adverse decisions; and
- requires that employers document both their decisions and the decision-making process.
Violations of the employment provisions of the ordinance are subject to a fine of up to $500 if it is the first violation or the first violation in three years. Other violations are subject to a fine of up to $1,000.
Employers with more than five employees (whether paid or unpaid) and doing business in Newark would be well-advised to do two things: 1) remove the criminal conviction inquiry from employment applications; and 2) consult counsel before conducting that next criminal background check.