By: Ralph R. Smith, 3rd, Esq.
On August 11, 2014, New Jersey became the sixth state in the country to enact legislation that precludes employers from seeking information from a job applicant about that person’s criminal background history during the preliminary stages of the hiring process. These laws, known as “Ban the Box” laws, prohibit employers from asking applicants about their criminal history until after an applicant clears an initial round of qualification screening. New Jersey’s version of this law is called “The Opportunity to Compete Act,” and its requirements go into effect on March 1, 2015. This gives employers more than ample time to bring their current pre-hiring practices in line with the new requirements of the law.
The new legislation provides that employers may not inquire, either orally or in writing, about a job candidate’s criminal record or require a candidate to complete an application that makes such inquiries during what the law calls the “Initial Employment Application Process.” “Initial Employment Application Process” is defined as the period beginning when the applicant first makes an inquiry to an employer about a prospective employment position or job vacancy, and ends when an employer has conducted a first interview of the applicant. Where the applicant voluntarily discloses any information about his/her criminal history, the employer is free to make an inquiry about that criminal history background even during the Initial Employment Application Process. While the law limits when criminal history inquiries can be made, it does not prohibit employers from using such information to refuse the hiring of a candidate based upon the applicant’s criminal record. The one exception to this general rule is if the criminal record or relevant portion thereof has been expunged or erased through an executive pardon.
Along with precluding the timing of when an inquiry into an applicant’s criminal record is permitted, the law similarly precludes employers from placing any advertisements that explicitly state that candidates with a criminal record will not be considered for employment. There are certain exceptions to this mandate as well. The law’s restrictions do not apply to advertisements seeking applicants for jobs in Law Enforcement, Corrections, the Judiciary, Homeland Security, Emergency Management, or any other employment position where a criminal history record background check is required by law, rule, regulation, or where an arrest or conviction by the person for one or more crimes or offenses could or may preclude the person from holding such employment as required by any law, rule or regulation. The law’s restrictions likewise do not apply where any law, rule or regulation restricts an employer’s ability to engage in specified business activities based upon the criminal records of its employees. The law’s restrictions on when an applicant can be required to complete an employment application are similarly inapplicable when the applicant is seeking employment in any of the foregoing referenced kinds of jobs or positions.
In order to be covered by the new statute, an entity must be either an instrumentality of the State, County, Municipality, or be a private employer who has employed 15 or more employees over 20 calendar weeks, and either does business, employs persons, or takes applications for employment within the State of New Jersey. “Employer” also includes any job placement and referral agencies and any other kinds of employment agencies.
There are also special requirements applicable to counties and municipalities that are now referenced in the law. No governing body of a county or municipality may adopt any ordinance, resolution, law, rule or regulation regarding criminal histories in the employment context, except for ordinances adopted to regulate municipal operations. The provisions of the new law likewise preempt any ordinance, resolution, law, rule or regulation adopted by the governing body of a county or municipality prior to the effective date of the law regarding criminal histories in the employment context, except for ordinances adopted to regulate municipal operations.
The most positive part of the new law for employers is that it does not create a private right of action for employees to sue for violations of the law. Instead, enforcement of the law is placed in the hands of the New Jersey Department of Labor and Workforce Development through its issuance of fines and penalties. There is a $1,000.00 penalty for the first violation, $5,000.00 for the second, and $10,000.00 for each subsequent violation. These penalties are the sole and exclusive remedy for the law’s violation, and evidence of an employer’s violation or alleged violation of the Act’s requirements is inadmissible in any other legal proceeding.
Now that New Jersey has “Banned The Box”, it is incumbent upon employers to take action to meet the new law’s requirements before they officially go into effect on March 1, 2015. Employers are wise to review all existing job advertisements, application forms, and any other pre hiring documents and excise any improper inquiries into an applicant’s criminal history contained therein. Moreover, it would likewise be helpful to start training all staff who are involved in the hiring process about these new restrictions on when an applicant’s criminal history information can be requested. In sum. while there is still some breathing room to implement compliance, now is the most sensible time to act to sensitize your employees on these new pre-hiring legal requirements.