In August 2014, New Jersey joined a growing list of states and municipalities to adopt a so called “ban- the-box” law. Such laws delay employer inquiries about applicant conviction histories until the later stages of the hiring process. The statute’s moniker is derived from a “ban of the box” that a prospective employee otherwise would be required to check on a job application form if he or she had been previously convicted of a crime. In the past, these laws have been mostly limited to public sector employment. Now, state and local governments have turned their attention to the private sector. Ban-the-box laws do not completely prohibit employers from asking about a job applicant’s criminal history. Rather, under such laws, inquiries about criminal histories are delayed in the hiring process until the candidate is considered at least minimally qualified for the job.

A total of 13 states and 69 local governments, including New York City1, have adopted ban-the-box laws. In the past two years alone, the following eight states have enacted ban-the-box laws: California, Delaware, Illinois, Maryland, Minnesota, Nebraska, Rhode Island and New Jersey. Ten additional states have introduced legislation in the past two years: Florida, Georgia, Louisiana, Michigan, New Hampshire, North Carolina, Ohio, South Carolina, Virginia and Washington. The recent surge in ban- the-box legislation is due to employers’ increasing reliance on criminal background checks in the hiring process and the issuance, in April 2012, by United States Equal Employment Opportunity Commission (EEOC) of enforcement guidelines relating to potential unlawful discrimination in hiring arising from pre- employment criminal background checks. In order to ameliorate the potential discriminatory consequences of such checks, the EEOC has stressed that hiring decisions should be made based upon an individual candidate’s job qualifications, rather than an automatic elimination due to a criminal history.

Proponents of ban-the-box legislation argue that employers’ reliance on criminal histories to automatically eliminate job applicants blocks rehabilitated former offenders from the job market and causes employers to lose otherwise qualified, hard- working candidates for employment. Supporters also argue that because incarceration rates are higher among African American and Hispanic populations, automatic disqualification due to prior convictions disproportionately affects minority candidates. The EEOC enforcement guidelines advise that about 1 in 17 Caucasian men are expected to serve time in prison during their lifetime, compared with 1 in 6 Hispanic men and 1 in 3 African American men.2

Opponents of ban-the-box laws argue the laws place undue burdens on employers during the hiring process. Further, opponents argue that employers have an interest in effectively and efficiently evaluating a potential employee’s suitability for a position. Accordingly, they argue, employers should have early access to any and all information about a candidate that may be relevant in their initial assessment of the candidate’s ability to safely perform the available job.

There are three general variations to the form of ban- the-box laws adopted by state and local governments. First, some laws prohibit criminal history inquiries until after the employer determines the applicant meets the minimum job requirements based on the job application. Second, and most commonly, ban- the-box laws prohibit criminal history inquiries until after the completion of a first interview. Third, some ban-the-box laws prohibit criminal history inquiries until after a conditional offer of employment has been made. Ban-the box laws in this third category generally provide that an offer may be withdrawn after careful consideration of the nature of the conviction, rehabilitation efforts, time elapsed since the conviction, and whether the applicant’s conviction is directly or rationally related to the duties and responsibilities of the position sought. Typically, violations of ban-the-box laws will result in civil penalties, which vary depending on the jurisdiction.

Every rule has its exceptions. Ban-the-box laws typically do not apply to employers in law enforcement, corrections, the judiciary, homeland and security or emergency management. Further, employers with statutory duties to conduct a criminal history record background check during the hiring process are generally exempted from ban-the-box laws.

New Jersey’s Opportunity to Compete Act

Last month, with the passage of the New Jersey Opportunity to Compete Act, New Jersey became the sixth and most recent state to extend the application of ban-the-box legislation to private employers.3 The statute will go into effect on March 1, 2015. The New Jersey Opportunity to Compete Act applies to private employers that employ 15 or more employees over a 20 calendar week period, doing business, employing persons, or taking applications for employment within the state of New Jersey. The New Jersey Act prohibits employers from inquiring about an applicant’s criminal record until the employer has completed the “initial employment application process,” which begins with an initial inquiry by the applicant and ends following an employer’s conduct of a first interview. If an applicant voluntarily discloses his or her conviction history during the initial steps described above, an employer is free to make any follow-up inquiry.

Further, an employer may freely inquire about an applicant’s criminal background following the completion of the initial employment application process. Most significantly, nothing in the new law would prohibit an employer from refusing to hire an applicant based upon the applicant’s criminal record, unless such record has been expunged or erased through executive pardon and provided such refusal is consistent with other applicable laws.

The New Jersey Act provides for civil penalties in the event of a violation. For a first violation, employers may be fined up to $1,000. A second violation increases the penalty up to $5,000. Thereafter, for each additional violation, employers may face fines up to $10,000. The law does not provide a private right of action for aggrieved applicants.

Suggestions for Employers

As more and more state and local governments enact ban-the-box laws, employers should review their hiring policies and practices and consider the following steps:

  • determine whether any state or local ban-the-box laws apply to their business operations;
  • review hiring processes and identify at what stage, if any, in the hiring process candidates are required to disclose criminal history;
  • train human resources personnel and other employees who conduct interviews on applicable ban-the-box law requirements;
  • review job postings for statements regarding applicants’ criminal backgrounds; and
  • review employment application forms to identify any requirements that an applicant disclose his or her criminal history and remove such inquiries as necessary.