Executive Summary
Coverage: Any person, company, corporation, firm, labor organization, or association which has 15 or more employees over 20 calendar weeks and does business, employs persons, or takes applications for employment within” the State of New Jersey, “including the State, any county or municipality, or any instrumentality thereof.” The term “employer” also covers “job placement and referral agencies and other employment agencies.” The law states that “the physical location of the prospective employment shall be in whole or substantial part, within this State.”
Effective Date: March 1, 2015
Overview: New Jersey has passed the Opportunity to Compete Act which establishes certain employment rights for persons with criminal records by prohibiting employers from asking applicants about their criminal record history during the initial employment application process.
Action Required: Review Internal Hiring Policies and Employment Applications and contact your Human Resource Business partner for guidance as needed.
The Details
Ban-the-Box Requirements
The phrase “ban the box” refers to removing from employment applications questions concerning an applicant’s criminal history (e.g., criminal convictions and pending charges). The New Jersey law prohibits private employers, as well as public employers (state, county, municipalities) from requiring applicants to disclose any criminal records on an employment application during the initial employment application process. The law also prohibits employers inquiring about an applicant’s criminal records verbally during the initial employment application process. “Initial employment application process” means the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or job vacancy, or when an employer first makes any inquiry to an applicant for employment about a prospective employment position or job vacancy, and ending when an employer has conducted a first interview whether in-person or by any other means of an applicant for employment.
Voluntary Disclosure
If an applicant discloses any information about their criminal history to an employer during the initial application process, the employer may make inquiries regarding the applicant’s criminal history during the initial application process.
Other Restrictions
Employers are prohibited from advertising that applicants for employment who have been arrested or convicted of one or more crimes or offenses will not be considered for employment. The new law does not prohibit employers from inquiring about or considering an applicant’s criminal history after the initial application process unless the criminal record has been expunged or erased by executive pardon. After the initial application process, employers may then inquire about criminal records in writing or verbally in a subsequent interview following the first interview. The law also provides that any current laws and/or ordinances regarding criminal history and employment are preempted. The means that Newark’s “ban the box” law will become preempted on March 1, 2015.
Exceptions
The law provides several exceptions to the restrictions placed on employers. Both the restriction on employers of criminal record inquires (written and verbal) as well as the advertising restrictions do not apply to employers if the position is a) in law enforcement, corrections, the judiciary, homeland security, emergency management or b) for a position where a criminal background check is required by law, rule or regulation and criminal records prevent an applicant from being employed due to law, rule or regulations.
Penalties
Employers who violate the act shall be liable for civil penalties 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 by the Commissioner of Labor and Workforce Development.
A full reading of the new law can be found here: AB 1999
Practical Impact
The law will require employers to review their hiring processes and related documentation. More generally, the New Jersey law is part of a growing trend at the state and local level aimed at controlling the use of criminal history to make employment decisions. In addition, the federal Equal Employment Opportunity Commission (“EEOC”) has recommended that employers refrain from including criminal history inquires on employment applications. EEOC guidance can be located here.
As always, please contact your Human Resource Business Partner if you have any questions.
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This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.
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