On February 25, 2015, the New Jersey Department of Labor and Workforce Development (NJDOL) published draft proposed regulations to implement the New Jersey Opportunity to Compete Act, otherwise known as the “ban the box” law. The Act, which restricts when in the hiring process an employer may obtain criminal history information from an applicant (and which is discussed in depth in our FAQs), goes into effect on March 1, 2015. The draft proposed regulations (to be formally proposed by publication in the March 16, 2015 issue of the New Jersey Register) include the following notable clarifications:

  1. Under the Act, a covered employer is one with 15 or more employees over 20 calendar weeks. The proposed regulations clarify that the Act only applies to employers that have 15 or more employees for each working day during at least 20 workweeks in the current or preceding calendar year.
  2. Under the Act, covered “employment” means prospective employment that is physically located, in whole or substantial part, in New Jersey. The proposed regulations clarify that this assessment is made at the outset of the application process and the threshold is met if the employer reasonably expects 50 percent or more of the working time in the position to be in New Jersey.
  3. The Act prohibits employers from making any oral or written inquiry into an applicant’s criminal background during the initial employment application process (IEAP), that is, until after an initial interview is conducted. The proposed regulations state that employers cannot make any oral or written criminal history inquiry to anyone (not just the applicant) during the IEAP. However, the proposed regulations also state that an employer can make an oral or written criminal history inquiry to anyone if the applicant voluntarily discloses information regarding his or her criminal background history.
  4. Certain types of prospective employment are exempt under the Act, and the proposed regulations provide specific definitions for those positions, including employment in law enforcement, corrections, emergency management, the judiciary, and homeland security.
  5. The Act does not create a civil cause of action for a violation of the Act, but does summarize the penalties that the NJDOL may assess for violations. The proposed regulations offer guidance on factors the NJDOL should consider when deciding the amount of an administrative penalty, and also provide a right for employers to appeal an assessment to the Commissioner of the NJDOL. Notably, in addition to publishing the proposed regulations, the NJDOL’s website now provides instructions on how to file a complaint under the Act.

While the draft proposed rules shed light on several ambiguities in the Act, important questions remain. For instance, the draft proposed rules do not definitively answer:

  • Whether a covered employer is one with 15 or more employees in total, or just one with 15 or more employees in New Jersey.
  • Whether an “initial interview” requires “real time” dialogue between the applicant and the employer, or whether some other sort of “interview” would suffice, such as a written interview questionnaire. 
  • Whether an employer must remove criminal history questions from its written employment application, or whether an employer can simply add an instruction to the criminal history portion of its application, such as “Applicants for positions located in New Jersey should not answer this question,” which is the preferred option for multi-state employers that wish to use a common application form.
  • Whether motor vehicle records are considered criminal records.
  • Whether an employer may conduct Internet or other public record searches concerning applicants prior to the conclusion of the initial interview.
  • Whether an employer must undertake some sort of deliberative process following the initial interview and conclude that the applicant meets the employer’s minimal qualifications for the position before asking the applicant about his or her criminal background.

While these questions remain unanswered for now, Ogletree Deakins will be submitting written comments to the NJDOL on these points in connection with the 60-day notice and comment period. We remain optimistic that the NJDOL will respond to the comments with favorable guidance to aid the business community.