On March 1, 2015, New Jersey will become the latest state to “ban the box” by prohibiting employers from inquiring into a job applicant’s criminal background during the initial stages of the hiring process.
The law, titled the Opportunity to Compete Act (the “Act”), was signed by New Jersey Governor Chris Christie on August 11, 2014, and applies to public and private employers with 15 or more employees. Pursuant to the Act, employers must revise job applications that contain criminal conviction checkboxes, or that ask about arrests or previous convictions. Employers are now legally required to wait until after an applicant’s first interview to ask about his or her criminal history.[1] In addition, employers are prohibited from posting job advertisements that state that individuals who have been arrested or convicted of a crime will not be reviewed for employment. Employers that violate the Act will face civil penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.
However, the Act provides exceptions that permit an initial inquiry into an employee’s criminal history if the work involves law enforcement, if the work cannot be legally performed by a person with a criminal record under federal or state law, or if the job is part of a specific program that is intentionally designed to encourage the employment of those with criminal histories.[2] In addition, the Act does not bar employers from inquiring about an applicant’s criminal history and performing criminal background checks on individuals at a later stage in the hiring process. Moreover, if an applicant voluntarily discloses information regarding his or her criminal past, the employer may then inquire into the specific nature of the criminal history disclosed.[3]
Interestingly, New Jersey is the twelfth state in the nation to pass this type of “ban the box” legislation. Dozens of municipalities have also passed similar legislation and have taken action to provide individuals who have “paid their debts to society” with easier access to employment opportunities. Proponents of such legislation contend that by removing obstacles to employment for those with criminal records, employers effectively reduce the likelihood of recidivism and improve economic opportunities for the job applicant and his or her family. To the contrary, opponents argue that “ban the box” laws prevent employers from efficiently screening job applicants and question whether the legislation will ultimately affect an employer’s decision to hire someone previously convicted of a crime.
In the next two weeks, employers should review employment adverting, application forms, and internal human resources documents to ensure all materials comply with the soon to be effective New Jersey law. Likewise, human resources professionals must receive training on how to properly conduct an interview in light of these new restrictions.
If you or your institution has any questions or concerns regarding employment related issues, please contact Hayley B. Dryer at hdryer@cullenanddykman.com or at 516-357-3745.
Thank you to Nathan Boone, an intern at Cullen and Dykman, for his assistance with this blog post.
[1] 2014 NJ A.B. 1999 (NS).
[2] Id. at ¶12.
[3] Id. at ¶4(b).