On August 11, 2014, New Jersey Governor Chris Christie signed the Opportunity to Compete Act which restricts New Jersey employers from seeking information regarding a job applicant’s criminal history. Under the Act, covered employers may not include a box to mark or a question concerning an applicant’s criminal history on a job application, or post job advertisements stating that they will not consider applicants with a criminal record. Employers also cannot orally ask job applicants about their criminal histories or perform a criminal background check during the “initial employment application process,” as defined by the Act. After the initial employment application process employers may obtain information about the applicant’s criminal record.
Prior versions of the Act contained more expansive and onerous provisions for employers, however, the Act signed by Governor Christie is limited to the “initial employment application process” which is the “period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position . . . and ending when an employer has conducted a first interview ….” This differs from other “ban the box” laws that have been enacted, including an ordinance in Newark, New Jersey, that prevent employers from conducting criminal background checks before a conditional job offer. Thus, while the New Jersey Act offers protection to job applicants, it does not go as far as other jurisdictions. Notably, the preemption provision of the Act renders Newark’s ordinance preempted.
The Act permits an employer to make inquiries regarding an applicant’s criminal history if the applicant discloses any information regarding his or her criminal record voluntarily during the initial employment application process. Additionally the Act permits inquiry into a job applicant’s criminal history if the individual is applying for a position in law enforcement, corrections, the judiciary, homeland security or emergency management, or where a criminal history record background check is required by law, rule or regulation for the employment sought. The Act does not preclude employers from seeking information about an applicant’s criminal record after the initial employment application process has concluded or from refusing to hire an applicant for employment based upon the applicant’s criminal record.
The Act specifically states that it does not create a private cause of action against an employer who has violated or is alleged to have violated the Act and that the penalties set forth in the Act shall be the sole remedy for violations. These penalties include a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.
The law becomes effective March 1, 2015. To avoid running afoul of the Act, covered employers should remove questions on job applications requiring applicants to disclose criminal history information and refrain from inquiring into an applicant’s criminal background until after the employer has conducted the first interview. Employers operating in multiple locations must stay current on the status of applicable state and local laws regarding criminal background inquiries for each location in which they operate. Similar “ban the box” legislation has been enacted in other states and cities. Most recently, (Labor, Employment and Employee Benefits Practice alert, May 20, 2014) Baltimore enacted an ordinance which prohibits any employers from inquiring as to whether a job applicant has a criminal record.