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Important Update about Criminal Background Checks on Prospective Employees
By Elizabeth M. Garcia on August 25, 2014

On August 11, 2014, the New Jersey Opportunity to Compete Act, aka “Ban the Box,” was signed into law prohibiting most employers from inquiring about an applicant’s criminal background history during the initial hiring process. 

On August 11, 2014, the New Jersey Opportunity to Compete Act, aka “Ban the Box,” was signed into law prohibiting most employers from inquiring about an applicant’s criminal background history during the initial hiring process. The purpose of the Act is to “improve the economic viability, health, and security of New Jersey communities and to assist people with criminal records to reintegrate into the community, become productive members of the workforce, and to provide for their families and themselves.”

Does the Opportunity to Compete Act apply to my company?
If your company does business or takes applications for employment in the State of New Jersey, and employs fifteen (15) or more employees over twenty (20) calendar weeks a year, it is likely the Act applies to your business.

Are there any exceptions to asking for an applicant’s criminal background during the application process?
Where a criminal background check is required by law, rule, or regulation, the employer may “keep the box.” The Act provides that applications for law enforcement, correction, homeland security or emergency management, and the judiciary positions are exceptions, just to name a few.

What does the law consider an application?
An employment application is a “form, questionnaire or similar document or collection of documents that an application for employment is required by an employer to complete.”

My company’s current job application asks if the applicant has been convicted of a felony. Do I need to redo the application?
Unless you fit one of the exceptions, the language or box must be removed. During the initial employment application process, the employer cannot require an applicant to complete an application that inquires about the applicant’s criminal record.  This requirement includes both written and oral inquiries.  However, if an applicant voluntarily discloses any information regarding his/her criminal record during the initial application process, then the employer may question the applicant about the record.

What does the Act consider a “criminal record?”
Criminal record is broadly defined to include “identifiable descriptions and notations of arrest, detention, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, release or conviction, including, but not limited to, any sentence arising from a verdict or plea of guilty or nolo contender, including a sentence of incarceration, a suspended sentence, a sentence of probation, or sentence of conditional discharge.”

Can I inquire about an applicant’s criminal background at any time at all before hiring the candidate? All employers are permitted to inquire about an applicant’s criminal background “after the initial employment application process has concluded.” This means that companies may inquire after a candidate has been interviewed and offered a conditional offer of employment. The idea behind the Act was to have employers focus on skills and other qualifications first before screening candidates for other history.

Interestingly, the Act does not “preclude an employer from refusing to hire an applicant for employment based upon the applicant’s criminal record, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon,” and so long as the decision not to hire is “consistent with other applicable, laws, rules or regulations.”

Are there penalties for violating the Act? 
Yes. The New Jersey Department of Labor and Workforce can impose a penalty no to exceed $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation.  However, an applicant does not have an individual right to sue.

When is the effective date of the prohibition? The New Jersey Opportunity to Compete Act goes into effect March 1, 2015. This Act, along with several other legal changes, may require an update of an employer’s employee manual and/or policies and procedures.  Employers should also review any job advertisements, applications, and other hiring related documents. All company interviewers should receive training to avoid inappropriate questions during the interview.

We encourage all our clients to update their manual and policies and procedures at least every two years to keep up with changing laws and requirements.  Our Labor and Employment Department keeps up with the changing laws, rules and regulations, and can assist you with this endeavor.

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