On February 7, 2013, three New Jersey Senators introduced “The Opportunity to Compete Act,” which would eliminate the check box that requires job applicants to disclose their criminal history and would also prohibit advertisements discouraging those with criminal records from applying.

If passed, an employer could only consider a job applicant’s criminal history after the employer makes a conditional offer of employment. After extending a conditional offer, employers may consider convictions for murder, arson, sex offense requiring registration, and terrorism, as well as any pending criminal charges. Employers may not consider:

  • convictions for most crimes of the first through fourth degree for which an applicant was released from custody over ten years ago;
  • any arrest or accusation that did not result in a conviction;
  • any record that has been erased, expunged, or sealed;
  • any juvenile delinquency adjudications; or
  • any violations of municipal ordinances.

Before deciding to rescind a conditional offer, the law would require employers to consider mitigating factors, such as any evidence of the applicant’s rehabilitation, the accuracy of the records, the amount of time since the candidate’s release from custody, and the nature and circumstances of the crime.

If an employer makes an adverse decision based on information from a candidate’s criminal history, the bill requires the employer to send the applicant written notice of the decision, a copy of the results of the background check, a completed “Applicant Criminal Record Consideration Form” (provided by the statute), and a “Notice of Rights” (also provided by the statute).

The bill gives the candidate ten business days to appeal the rejection but does not require the employer to hold the position for the candidate during that time. If the position is still open, however, the employer must consider any additional information the candidate provides.

Employers who violate the bill could be subject to civil penalties.

“Ban the box” laws are becoming more common. Employers should keep abreast of new developments to ensure that they are complying with these new laws in each jurisdiction where they operate. Employers who have questions about this proposed legislation should consult counsel for assistance.