On August, 11, 2013, New Jersey Governor Chris Christie signed the “Opportunity to Compete Act” into law. The Act becomes effective March 1, 2015 and limits the ability of both private and public New Jersey employers to inquire into a job applicant’s criminal record. It is the latest state to join a broader movement that has picked up steam nationally.
New Jersey’s version of the “ban the box” law applies to any employer that has 15 or more employees over 20 calendar weeks. Under the Act, an employer may not require an applicant to complete an employment application that makes any inquiries regarding an applicant’s criminal record during the “initial employment application process.” The initial hiring steps are as follows:
- an interview has been conducted
- made a determination that the applicant is qualified for the position
- selected the applicant as its first choice to fill the position
An employer also may not make any oral or written inquiry regarding an applicant’s criminal record during the initial employment application process, or post any advertisement stating that it will not consider an applicant with a past arrest or conviction.
Exceptions to the law include the following:
- positions sought in law enforcement, corrections, the judiciary, homeland security or emergency management,
- where the employer is required to run a criminal background check by law, rule, or regulation,
- where an arrest or conviction would serve as a bar to employment under any law, rule, or regulation, or
- where any law, rule, or regulation restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees.
The Act also permits an employer to inquire into an applicant’s criminal history during the initial employment application process:
- where the applicant voluntarily discloses a criminal record, or
- as part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons with criminal histories
Unlike similar laws in other jurisdictions, however, New Jersey employers may make criminal background inquiries prior to making a formal offer.
Penalties for violations of the Act include civil penalties of $1,000 for first violations, $5,000 for second violations, and $10,000 for subsequent violations. However, the Act does not allow for lawsuits in court.
New Jersey employers are well advised to have their employment applications and hiring processes reviewed by their employment lawyers. Your MBL consultant has a list of excellent employment lawyers available upon request.
- M.Arco, “Christie signs bill preventing employers from asking about applicants’ criminal backgrounds early on”– http://www.nj.com/politics/index.ssf/2014/08/christie_signs_bill_preventing_employers_from_asking_about_applicants_criminal_backgrounds_early_on.html
- F. Esposito, “Gov. Christie Signs ‘Ban the Box’ Bill Into Law in New Jersey”–http://www.mondaq.com/unitedstates/x/334468/employee+rights+labour+relations/Gov+Christie+Signs+Ban+the+Box+Bill+Into+Law+in+New+Jersey
- D.Linger, “New Jersey Governor Christie Signs ‘Ban the Box’ Legislation”, The National Law Review–http://www.natlawreview.com/article/new-jersey-governor-christie-signs-ban-box-legislation
- Proskauer, “New Jersey Bans the Box for Private Employers” – http://www.proskauer.com/publications/client-alert/new-jersey-bans-the-box-for-private-employers/