The Municipal Council of the City of Newark, New Jersey has passed a new ordinance designed to help individuals with criminal convictions find employment within the City of Newark. This ordinance, effective November 18, 2012, is different from many other cities’ ban-the-box ordinances in that it covers all private sector employers with five or more employees and doing business, employing persons, or taking employment applications within the City of Newark. The ordinance also applies to the rental, lease or sublease of real property and licensing by the City.
Under the new ordinance, an employer must abide by the following in any decision regarding employment of an individual at a physical location, in whole or substantial part, within the City of Newark:
- An employer shall not conduct any pre-application criminal history inquiry regarding any person.
- An employer may only make a criminal history inquiry regarding a candidate if the employer has made a good faith determination that the position is of such sensitivity that a criminal history inquiry is warranted.
- Any such inquiry into and consideration of the criminal history of a candidate may take place only after the candidate has been found otherwise qualified and received a conditional offer of employment and only after written notice is provided. An employer shall not make any inquiry regarding a candidate’s criminal history during the application process.
- If the candidate voluntarily discloses any information regarding his or her criminal history by unsolicited voluntary written or oral disclosure, the employer may discuss the criminal history disclosed.
- Any information obtained not as a result of a permissible inquiry or voluntary disclosure may not be used for any purpose in an employment determination.
- There are specific notice requirements employers must satisfy prior to conducting any criminal history inquiry which are described below (Pre-Inquiry Notice Requirements).
- Employers are prohibited from including language in job advertisements that indicates any limitation on eligibility for employment based on criminal history.
- Any information obtained by an employer that pertains to a candidate’s or an employee’s criminal history must remain confidential.
Pre-Inquiry Notice Requirements
Before an employer can conduct any criminal history inquiry on a candidate or employee, the employer must provide the employee written notification advising the individual of the following:
- Upon written consent of the candidate or employee, the employer will be conducting a criminal history inquiry;
- Following any adverse decision by the employer regarding employment, the candidate or employee will have the right and opportunity to present evidence; and
- The types of evidence that may be presented by the candidate or employee.
Type and Scope of Inquiries Permitted
If a criminal history inquiry is permitted an employer’s inquiry must be limited to:
- indictable offense convictions for eight years following the sentencing;
- disorderly person convictions or municipal ordinance violations for five years following the sentencing; and
- pending criminal charges.
An employer shall be permitted to inquire about convictions for murder, voluntary manslaughter, and sex offenses that are punishable by a term of incarceration in state prison, regardless of the length of time that has passed since the disposition.
An employer may not conduct any inquiry about, or require any candidate or employee to disclose or reveal, or take any adverse action against any candidate or employee on the basis of:
- any arrest or criminal accusation made against the candidate or employee that is not then pending against that person and that did not result in a conviction; or
- any records that have been erased, expunged, the subject of an executive pardon, or otherwise legally nullified; or
- any juvenile adjudications of delinquency or any records that have been sealed.
Factors that Must be Considered by Employers
Consistent with the recent Equal Employment Opportunity Commission guidance, employers also are required to undertake an individualized analysis of the following factors prior to denying employment based on an applicant’s criminal background:
- The nature of the crime and its relationship to the duties of the position sought or held;
- Any information pertaining to the degree of rehabilitation and good conduct, including any information produced by the candidate or employee, or produced on his or her behalf;
- Whether the prospective job provides an opportunity for the commission of a similar offense(s);
- The likelihood the circumstances leading to the offense(s) will reoccur;
- The amount of time that has elapsed since the offense(s) and how that was factored into the employment decision;
- Any certificate of rehabilitation issued by any state or federal agency, including, but not limited to, certificates issued pursuant to N.J.S.A. 2A:168A-7
Pre-Adverse Action Notice Requirements
If an employer will be making an adverse employment decision, the employer, within a reasonable period of time, must take the following steps:
- Notify the candidate or employee of the adverse employment action;
- Complete an Applicant Criminal Record Consideration Form (sample model Form available here) specifying how the employer should document its decision to revoke a conditional offer;
- Document in writing the employer’s consideration of the factors set forth above (Factors that Must be Considered by Employers);
- Provide the applicant or employee:
- a copy of the Applicant Criminal Record Consideration Form,
- a photocopy of the report, and
- a written notice of rejection;
- Advise the candidate or employee of the opportunity to review the decision and the kinds of evidence that can be presented during the review; and
- All of the above notices and information must be sent in one package by registered mail to the candidate or employee.
Employees Have an Opportunity to Review Decision
The applicant or employee has 10 business days after receipt of the above notices to respond to the results of the criminal history inquiry, a greater period of time than is required under Federal Trade Commission interpretations of the Fair Credit Reporting Act (FCRA). The candidate or employee must be provided with an opportunity to present evidence relating to the accuracy and relevancy of the criminal history inquiry. The employer must consider all information provided by the candidate or employee prior to making any final decision and provide the candidate or employee with its final decision in writing.
The ordinance’s prohibitions do not apply to inquiries or disqualification mandated by federal or state law.
Penalties for violations range from $500 to $1,000, depending on whether it is a Type 1 or Type 2 violation. A Type 1 violation is an initial violation or a violation that is not preceded by another violation within the previous three years. A Type 2 violation is any violation that is preceded by another violation within the previous three years.