On June 26, 2014, the New Jersey legislature approved the most recent iteration (A1999) of the “Opportunity to Compete Act” (also referred to as the “Ban the Box” bill), which will now be sent to Governor Chris Christie for consideration. (We discussed previous versions of the bill in the March 2014 issue of the New Jersey eAuthority, among others.)
Most significantly, the version of the bill now before Governor Christie will no longer require employers to make a conditional offer of employment before inquiring into an applicant’s criminal background—instead, an employer may inquire into an applicant’s criminal background any time following the first interview, which need not be in person. The bill also eliminates any requirement that employers consider, and discuss in good faith with applicants, information regarding the accuracy of the criminal record information, the degree of rehabilitation, the nature of the offense and how long ago it occurred, and the duties and setting of the job. (Multistate employers will note that these requirements do exist across the river in New York, pursuant to Article 23A, and employers will recognize these factors from the EEOC’s 2012 Enforcement Guidance on Employers’ Consideration of Arrest and Conviction Records).
The bill also expressly states that it does not create a private cause of action, and also indicates that it will preempt any ordinance, resolution, law, rule, or regulation adopted by the governing body of a county or municipality prior to the effective date of this act regarding criminal histories in the employment context, except for ordinances adopted to regulate municipal operations. This means that Newark’s ban the box ordinance, discussed here, seemingly would be preempted.