On August 11, 2014, New Jersey’s Governor Chris Christie signed into law the “Opportunity to Compete Act.”  Beginning on March 1, 2015, employers will be prohibited from publishing advertisements providing that the employer will not consider any applicant with an arrest or conviction record, and more importantly, employers will be prohibited from inquiring about applicants’ criminal records “during the initial employment application process,” orally or on job applications.  “Initial employment application process” is defined as the period beginning with the initial inquiry about prospective employment until the employer has conducted a first interview, determined the applicant is qualified, and selected the applicant as the employer’s first choice to fill the position.  If an applicant voluntarily discloses information regarding a criminal record, the employer may make a limited inquiry regarding only the criminal history disclosed. 

After the “initial employment application process,” an employer may inquire into and consider the applicant’s criminal history, and may still refuse to hire an applicant based on a criminal record, subject to certain limitations.  (For example, the employer may not consider arrests not resulting in convictions or certain convictions that are too old.) 

If the employer has questions or concerns relating to the criminal history and suitability for the position, the employer must make a good faith effort to discuss them with the applicant and, while the position remains open, consider any information provided by the applicant, such as information pertaining to the accuracy of the criminal record, the degree of rehabilitation and good conduct, the nature and age of the offense, and the duties and settings of the job. 

The law includes several important exceptions.  Employers may inquire about and consider criminal records during the initial employment application process (and post ads that discuss criminal records) if the position sought falls into certain enumerated categories (such as those in law enforcement), or positions where a criminal history background check is required by law, where an arrest or conviction could preclude the applicant from holding the position, or where a law would restrict the employer’s ability to engage in specified business activities based on the criminal records of its employees. 

The law preempts any other law or regulation adopted by a county or municipality regarding criminal histories in the employment context, except for ordinances adopted to regulate county or municipal operations.

Violators are subject to a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation collectible by the Commissioner of Labor and Workforce Development in a summary proceeding.  The law offers some limited protection to employers by providing that in negligent hiring or retention claims based in whole or part on an employee’s criminal record, the employer may not be found liable unless the employer's hiring decision is found to have been grossly negligent.

New Jersey is following the lead of several other states – such as Illinois, Hawaii, Massachusetts, Minnesota, and Rhode Island – that have passed “ban the box” legislation applying to private employers.  Several municipalities have passed similar legislation.  Unless exempted from coverage, New Jersey employers should be mindful of their job postings and remove from their application materials any inquiries into an applicant’s criminal history and refrain from making any such inquires, whether directly with the applicant or through a criminal background check, until after the “initial employment application process.”