By Tom Jardim
On March 1, 2015, New Jersey’s “Opportunity to Compete Act” went into effect. This law, signed by Governor Chris Christie on August 11, 2014, prohibits companies with 15 or more employees from obtaining information from job applicants about their criminal records. As of this writing, 17 states and over 100 cities and counties around the country have adopted what is widely known as “ban the box” legislation, mandating that employers consider a job candidate’s qualifications first, without the stigma of a conviction record. Proponents of these laws argue that they provide applicants a fair chance by removing the conviction history question on the job application and delaying the background check inquiry until later in the hiring.
The U.S. Equal Employment Opportunity Commission (EEOC) has also endorsed removing the conviction question from the job application as a best practice in its 2012 guidance, making clear that federal civil rights laws regulate employment decisions based on arrests and convictions.
New Jersey’s law prohibits:
- posting job advertisements indicating that persons who have been arrested or convicted of a crime will not be considered for employment; and
- requiring applicants to complete a job application that mandates disclosure of their criminal history.
The ban only applies to the “initial employment application process,” that is, “the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or job vacancy … and ending when an employer has conducted a first interview …” Employers are not prohibited from running a criminal background check on an applicant after the first interview or, as is the typical practice, after a conditional offer of employment has been extended to the applicant. Also, under no circumstances can an employer consider a criminal record that has been expunged or erased through executive pardon.
There are exemptions to this law – for those in law enforcement, corrections, the judiciary, homeland security or emergency management, for example. And of course, an employer cannot be penalized in the (unlikely) event that a prospective employee volunteers such information. And while there is no provision under the law that would permit an aggrieved job applicant to sue the employer who violates the law, the New Jersey Commissioner of Labor and Workforce can impose a civil penalty of up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation.
We would assume that most employers wouldn’t publish an a job advertisement saying, “convicted felons need not apply.” But we also have no doubt that some employers are still using ancient employment application forms with criminal record questions on them. And we further have no doubt that some hiring supervisors who are inclined to inquire about such issues are not aware of the existence of this new law.
We encourage all covered employers to review their job application and related forms for impermissible inquiries regarding criminal records. We also encourage employers to train employees who conduct job interviews and make or influence hiring and personnel decisions, so that they understand permissible and impermissible inquiries into, and uses of, criminal records, and convey best practices for storing such records and documenting related hiring and personnel decisions.