New Jersey recently joined the growing list of states limiting inquiries about criminal history until after initial application stages.
On Monday, August 11, 2014, Governor Christie signed “The Opportunity to Compete Act” into law. Also, commonly known as a “ban the box” law, it limits the ability of New Jersey employers to inquire into a job applicant’s criminal record until after the employer has completed the “initial application process.” The initial application process is considered complete after the employer has conducted the first interview.
If the applicant voluntarily discloses information during the initial employment application process, then the employer can make inquiries at that stage.
The Act only applies to employers with 15 or more employees (not necessarily 15 in New Jersey, just 15 total). The Act does not apply to
- Those “employed in the domestic service of any family or person at the person’s home”
- independent contractors
- jobs in law enforcement, corrections, the judiciary, homeland security or emergency management
- jobs where the employment sought or being considered is for a position where a criminal history record background check is required by law, rule or regulation or where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule, or regulation
- jobs where any law, rule or regulation restricts and employers’ ability to engage in specified business activities based on the criminal records of its employees.
The Act does not preclude an employer from making inquiries about criminal history after the initial applicant process has concluded. Nor does the Act prevent employers from refusing to hire an applicant for employment based on the applicant’s criminal record (unless the record has been expunged).
Nonetheless, before considering criminal history, an employer should familiarize itself with other laws, such as Title VII, ADEA, ADA, FCRA, etc. See for example
- EEOC’s guidance on consideration of arrest and conviction records in employment decisions (recommending that employers refrain from asking about convictions on job applications and that, if and when employers make such inquiries, the inquiries be limited to convictions for which an exclusion would be job related for the position in question and consistent with business necessity)
- Requirements under the Fair Credit Reporting Act for use of Employment Background Checks
Penalties for violations of the Act include civil penalties of $1,000 for first violations, $5,000 for second violations, and $10,000 for subsequent violations. There is no private right of action for violations of the Act.
The law takes effect March 1, 2015.