New Law Prohibits Employers From Making Initial Inquiries About A Job Applicant’s Criminal Record
Attention Employers: New Law Prohibits Employers From Making Initial Inquiries About A Job Applicant's Criminal Record.
On August 11, 2014, Governor Chris Christie signed “The Opportunity to Compete Act” into law. This so-called "ban-the-box" law, which takes effect March 1, 2015, and applies only to those employers who employ 15 or more individuals, makes New Jersey the thirteenth state to prohibit employers from asking applicants about criminal convictions on initial employment applications. However, New Jersey is only the fifth state to impose this limitation on private employers.
Although there are limited exceptions (e.g., jobs in law enforcement, corrections, the judiciary, homeland security, or emergency management; jobs that require a criminal background check by law; an employer is “restricted from specified business activities” based on the criminal records of its employees; or for employers who are engaged in hiring people convicted of crimes), the new law:
- Prohibits employers from posting job advertisements stating that they will not consider anyone who has been arrested or convicted of a crime.
- Prohibits employers from asking employment applicants about their criminal histories on applications and from conducting criminal background checks during the "initial employment application process." In other words, an employer may not make inquiries about an applicant's criminal history until after the employer has conducted a first interview of the applicant and determined he or she is qualified for the position. If, however, an applicant voluntarily discloses a criminal history, employers are permitted to make further inquiries.
- Prohibits and preempts any conflicting state or local ordinance, resolution, law, rule, or regulation. Specifically, municipalities may not regulate criminal histories in the employment process (except for ordinances regulating municipal operations) and any current laws, rules, ordinances, or regulations regarding criminal histories in the employment context are preempted. E.g., the new law preempts Newark’s “ban the box” law effective March 1, 2015.
- Permits employers to refuse to hire someone based on his or her criminal history discovered after the initial application process is completed, so long as the relevant criminal record has not been expunged or erased through executive pardon. Such rejection must comply with other applicable laws or regulations and should take into account considerations set forth by the EEOC in 2012.
- Imposes a $1,000 fine on employers for the first violation, $5,000 for the second, and $10,000 for each subsequent violation. However, an applicant has no civil cause of action against an employer for alleged violations of this new law.
To ensure compliance with the new law and the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, employers should review application forms and processes as well as criminal background check procedures. If you have any questions about how these changes in the law may affect your business, please contact Riker Danzig's Labor & Employment Group.