On Monday, Governor Chris Christie signed the Opportunity to Compete Act (S2124/A1999) into law, which is designed to restrict employers from asking about prior criminal convictions on job applications.  Christie enthusiastically hailed New Jersey as “a state that believes every life is precious” and “everyone deserves a second chance . . . Today, we’re banning the box!”

The law applies to employers with 15 or more employees1 over 20 calendar weeks who do business, employ persons, or take applications for employment within the state of New Jersey, and becomes effective March 1, 2015.  The law limits employers from asking any questions (whether oral or written) about an applicant’s criminal record during the initial application process, unless the employment is for a position in law enforcement, corrections, the judiciary, homeland security, emergency management, or any other employment position where a criminal history check is required by law, rule or regulation, or where, by law, rule or regulation an arrest or conviction would preclude the person from holding such employment.2    

In short, subject to the limited exceptions outlined above, employers may inquire into criminal history only after:  (1) the interview has been conducted; (2) the employer has determined the applicant to be qualified; and (3) selected the applicant as the employer’s first choice to fill the position.

The law further requires that, when making an employment decision, an employer cannot consider, require an applicant to disclose or otherwise take adverse action on the basis of:

  • Any arrest or criminal accusation that did not result in conviction;
  • Any record that has been erased or expunged that has been the subject of an executive pardon unless such record was explicitly made relevant for the position by a federal or State law, rule, or regulation;
  • A conviction for a disorderly persons offense or a conviction for conduct from another state which, if committed in New Jersey, would constitute a disorderly persons offense, where the sentence or release date from incarceration, whichever is later, occurred five or more years prior to the date of the application for employment unless the applicant was subsequently convicted of a crime or disorderly persons; or
  • A conviction for a crime of the first through fourth degree or a conviction for conduct from another state which, if committed in New Jersey, would constitute a crime of the first through fourth degree, where the sentence or release date from incarceration, whichever is later, occurred 10 or more years prior to the date of the application for employment unless the applicant was subsequently convicted of a crime or disorderly persons.

An employer can make inquiries and consider the following crimes regardless of the sentence or release date from incarceration when making an employment decision:

  • Criminal homicide, including murder, manslaughter, and death by auto;
  • Arson and arson-related offenses;
  • Sex offenses;
  • Robbery;
  • Kidnapping;
  • Human trafficking;
  • Possession of weapons during commission of certain crimes;
  • Burglary;
  • Aggravated assault;
  • Any crime listed in 18 U.S.C. Chapter 113B – Terrorism, and any crime listed in the “September 11th, 2001 Anti-Terrorism Act;” and
  • Any offenses of a nature substantially similar to any offenses set forth above committed in another jurisdiction, regardless of when they occurred.

When a background check reveals an applicant’s criminal history, an employer should consider the following additional factors:

  • Accuracy of the criminal record;
  • Degree of rehabilitation and good conduct;
  • Nature of the offense and how long ago it occurred; and 
  • Duties and settings of the job sought or held.

If an employer is considering making an adverse action, it must first “make a good faith effort” to discuss the above with the applicant and, while the position remains open, consider any information provided by the applicant.

Furthermore, an employer is prohibited from publishing any advertisement for employment that explicitly provides that the employer will not consider persons who have been arrested or convicted of one or more crimes or convictions.  Notwithstanding, this does not apply to an advertisement that solicits applicants for positions subject to exemption under the law, as discussed above.

Most importantly, perhaps, the law provides some of the strongest protections for employers in the country.  Specifically, the law has no private right of action and it shields employers from negligent hiring or retention suits by raising the standard to “grossly negligent,” and deeming evidence that an employer violated the terms of the law to be inadmissible in any legal proceeding, except in an action by the NJ Department of Labor to enforce the law.Finally, an employer who violates this law shall be held liable for a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.