On August 11, 2014, New Jersey joined the growing number of jurisdictions banning the box on job applications that require job applicants to disclose criminal history information. This new legislation, the Opportunity to Compete Act (the "Act"), is designed to give individuals who have "paid their debts to society" a fresh start with regard to opportunities for employment. The Act will become effective on March 1, 2015.
The Act, which applies to employers with 15 or more employees who do business, employ people or take applications for employment in New Jersey, prohibits employers from doing the following: (1) posting job advertisements indicating that persons who have been arrested or convicted of a crime will not be considered for employment; and (2) requiring applicants to complete a job application that requires disclosure of their criminal history. Although the legislation does not specify whether the numerical requirement of 15 or more employees means employees working within the State of New Jersey (as opposed to total employees working in any jurisdiction), the remainder of the statutory definition suggests that employers with a total workforce of 15 or more employees regardless of their locale are subject to the Act if the employers do business in New Jersey, employ workers in New Jersey or accept applications for employment in New Jersey.
The prohibition on requests for criminal history information covers only the "initial employment application process," which includes both the job application and the first interview of the job applicant. Employers are not prohibited from running a criminal background check on an applicant after the first interview or, as is common practice, after a conditional offer of employment has been extended to the applicant. Under no circumstances can an employer consider a criminal record that has been expunged or erased through executive pardon.
In the following limited circumstances, the Act allows employers to request criminal history information before the first interview:
- If an applicant brings up his or her criminal history during the initial application process, the employer may make a reasonable, limited inquiry regarding only the criminal history that the applicant disclosed;
- Where the applicant is being considered for a position in law enforcement, corrections, the judiciary, homeland security or emergency management;
- Where the applicant is being considered for a position where a criminal background check is required by law, rule or regulation;
- Where the applicant may be legally precluded from holding the position by virtue of his or her criminal background; and
- Where any law, rule or regulation restricts an employer's ability to engage in specified business activities based on the criminal records of its employees.
Employers who violate the Act may be subject to civil penalties for noncompliance. A first violation carries a fine of $1,000; a second violation $5,000; and each subsequent violation $10,000. There is no private right of action under the Act.
New Jersey is the fifth state to enact ban-the-box legislation, joining Massachusetts, Hawaii, Minnesota and Rhode Island. In addition to those five states, certain municipalities in the United States have ban-the-box ordinances, including Philadelphia, Pennsylvania (as we reported in an earlier Duane Morris Alert); Baltimore, Maryland; and, most recently, San Francisco, California (as we reported in an earlier Duane Morris Alert). New Jersey municipalities, such as Newark and Atlantic City, also passed ban-the-box ordinances, although those ordinances are now preempted by the New Jersey statewide legislation (except to the extent the ordinances regulate municipal operations).
What This Means for Employers
In advance of the effective date of the Act, employers with 15 or more employees who do business in New Jersey, employ any individuals in New Jersey or take applications for employment in New Jersey should prepare to revise their employment applications and any advertisements or postings for open positions to ensure that applications do not request criminal history information and advertisements do not state that applicants who have been arrested or convicted of a crime will not be considered for employment. Employers should also consider training those involved in the hiring process to ensure their awareness of the ban on criminal background inquiries during the application and initial interview process, absent one of the limited exceptions noted above. We will monitor any directives from the Commissioner of the Department of Labor and Workforce Development, as the Act gives the Commissioner the power to take any anticipatory administrative action that is necessary for the implementation of the Act in advance of the March 1, 2015, effective date. We will also issue another Duane Morris Alert if further guidance is released.