As previously reported, New Jersey’s version of the “ban the box” law, entitled “Opportunity to Compete Act” (the Act), goes into effect March 1, 2015. The Act limits covered employers’ ability to inquire into a job applicant’s criminal record.
In less than a week, public and private employers that have 15 or more employees hired to work in 20 or more calendar weeks will be prohibited from inquiring about an applicant’s criminal record until after the employers have completed the following initial hiring steps: (1) conducted an interview; (2) made a determination that the applicant is qualified for the position; and (3) selected the applicant as the first choice to fill the position.
Even after these initial steps are complete, employers are still prohibited from inquiring into: expunged criminal records; arrests that did not result in conviction; disorderly conduct convictions in which the date of sentence or the release from jail (whichever is later) occurred five or more years ago; and conviction of crimes of the fourth degree (or out-of-state equivalent) in which the date of sentence or the release from jail (whichever is later) occurred 10 or more years ago.
The Act also limits employers from posting job advertisements that state they will not consider applicants who have been arrested or convicted of a crime, unless the advertisement seeks applicants for one of the exempt positions set forth in the Act.
Covered employers that violate the Act will face civil penalties of $1,000 for first violations, $5,000 for second violations, and $10,000 for subsequent violations. The Act does not, however, provide for any private right-of-action against employers (such as by individual applicants or employees).
Finally, the Act prohibits local governments from enacting their own laws as to the same subject matter, and effective March 1, 2015, all pre-existing, local ban-the-box laws – such as those in Newark, N.J. – are preempted.
With the Act set to go into effect in a few days, we remind covered employers to review and revise employment applications and job postings to eliminate any references or inquiries into applicant criminal backgrounds. Covered employers should also revisit their interview processes and materials, and remind those involved in the interview process of the prohibition against inquiring about an applicant’s criminal background until after the initial employment application process is complete.