“Ban the Box” Law Affects How New Jersey Employers May Inquire Into Criminal Records

“Ban the Box” Law Affects How New Jersey Employers May Inquire Into Criminal Records
Labor & Employment Alert March 2015

    If your organization inquires into the criminal records of job applicants in New Jersey, a new law affects how your organization may do so.

    Effective March 1, 2015, New Jersey employers are subject to a new law governing the use of criminal background checks for job candidates.  Often referred to as the “Ban the Box Law,” the new law applies to all New Jersey employers with 15 or more employees.  It prohibits employers from inquiring into a job applicant’s criminal record during the initial employment application process.  Specifically, the law prohibits employers during the initial application process from: (1) requiring an applicant to complete an application asking about the applicant’s criminal record; (2) making any oral or written inquiries into an applicant’s criminal record; and (3) publishing an advertisement for employment that explicitly provides that the employer will not consider any applicant with a criminal record.  The law also prohibits employers from refusing to hire an applicant based upon a criminal record that has been expunged or pardoned.

    After the initial application process, however, the law permits employers to inquire into the candidate’s criminal history.  In addition, the law does not prohibit employers from inquiring into an application’s criminal record during the initial employment process if the job is for a position in law enforcement, corrections, the judiciary, homeland security, or emergency management, or if a criminal background check is required by another law or regulation that requires checks for the position sought.

    The New Jersey Department of Labor and Workforce Development is charged with enforcing the new law.  Any employer who violates the law will be liable for a civil penalty up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.  The law does not provide job applicants with a private cause of action against a prospective employer.  

    If you have any questions about how this decision may affect your business, please contact Scott Ohnegian, Daniel Zappo, or any other member of Riker Danzig's Labor & Employment Group.