NJ’s Ban the Box: What You Need to Know

Overview

New Jersey’s Opportunity to Compete Act (the “Act”) (also known as the New Jersey “Ban the Box” law), goes into effect on March 1, 2015.  The new law restricts most employers’ ability to request criminal history information from job applicants.  The law bans the box on job applications that require job applicants to disclose criminal history information.  The Act is designed to give individuals who have “paid their debts to society” a fresh start with regard to opportunities for employment.

This is an overview of the law along with some frequently asked questions and answers.  The best way to mitigate concerns about hiring someone with a criminal background is to conduct a background check after the candidate has accepted the offer (the offer letter would include a statement that the offer is contingent upon successful completion). EnformHR can coordinate and conduct these checks. Contact us for more information.

What is the Act?

The Act prohibits employers from doing the following:

1. Posting job advertisements indicating that persons who have been arrested or convicted of a crime will not be considered for employment.
2. Requiring applicants to complete a job application that requires disclosure of their criminal history.

This Act covers only the initial employment application process which includes both the job application and the first interview of the job applicant.

The Act does not prohibit employers from running a criminal background check on an applicant after the first interview or after a conditional offer of employment has been extended to the applicant.

Who does the Act apply to?

The Act applies to employers with 15 or more employees who do business, employ people or take applications for employment in New Jersey.

When does the Act go into effect?

The Act will become effective on March 1, 2015.

What steps should be taken by employers to comply with the law?

1. Ensure that any advertisement or job postings for open positions do not state that applicants who have been arrested or convicted of a crime will not be considered for employment.
2. Review and revise your company employment application (paper or online) to ensure that applications do not request criminal history information.  For example, if the current employment application asks “Have you ever been convicted of a felony?” you should remove that question from the application.
3. Instruct anyone responsible for interviewing applicants not to make any inquiry about an applicant’s criminal record during a first interview with an applicant.
4. If collection of criminal record information is desired, adopt a process that requires screening of applicants after a first interview is conducted to determine if, based on the non-criminal record information gathered, the applicant meets the minimal qualifications for the position and appears to be a potentially viable candidate. Then, as to those applicants who pass the screening process, criminal history information can be requested from the applicant directly in writing or through a third party background check (which, as noted above, must be done in compliance with the federal Fair Credit Reporting Acts and similar state laws).

Are there exceptions to the Act?

Yes, there are several. An employer may inquire about an applicant’s criminal record during the initial employment application process for the following reasons:

1. When the applicant is seeking a position in law enforcement, corrections, the judiciary, homeland security, or emergency management.
2. When the applicant is seeking a position for which a criminal record check is required by law, or when an arrest or conviction may preclude the person from holding the position by law, or when a law restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees.
3. When the applicant is seeking a position designated by the employer as part of a program designed to encourage the employment of persons who have a criminal record.

Does the law only apply to positions that are to be based in New Jersey?

For the most part, yes. The law requires that the physical location of the prospective employment shall be in whole, or in substantial part, within the State of New Jersey. Positions that are not based in New Jersey, or only involve insubstantial presence in New Jersey, are not subject to the law’s restrictions on seeking criminal record information.

What are the penalties for noncompliance?

Employers who violate the Act may be subject to civil penalties for noncompliance. A first violation carries a fine of $1,000; a second violation $5,000; and each subsequent violation $10,000.