Written by David Katz
In December, we wrote about New Jersey’s proposed “ban the box” measure, known as the Opportunity to Compete Act, making its way through the legislature – a law that would prohibit employers from inquiring about job candidates’ criminal histories early in the hiring process. On June 26, the New Jersey Legislature gave final approval (including a 32-1 Senate vote and a 49-24 Assembly vote) to a slightly more employer-friendly version of the bill, which now heads to Governor Chris Christie’s desk.
Under the revised bill, New Jersey employers with 15 or more employees would be prohibited during the “initial employment application process,” defined as the period between first contact with the candidate and the first interview, from asking candidates about their criminal histories on employment applications and from conducting criminal background checks. Such inquiries, however, would now be permitted during the “initial employment application process” if candidates voluntarily disclose information about their criminal histories.
The following exceptions apply to the bill’s restriction on inquiries during the “initial employment application process”: positions in law enforcement, corrections, the judiciary, homeland security or emergency management, positions where criminal background checks are required by law or where an arrest or conviction may preclude the person from holding such employment as required by law, or where any law restricts an employer’s ability to engage in specified business activities.
The legislation makes clear that employers may inquire about candidates’ criminal histories after the “initial employment application process.” This marks a departure from previous versions of the bill which only allowed for such inquiries after selecting the applicant as the employer’s first choice to fill the position. Gone from the bill are all restrictions, following the “initial employment application process,” upon what information an employer may request from, or consider in an employment decision about, an applicant regarding the applicant’s criminal record, including information about offenses which occurred longer ago than specified periods of time, information about minor nonviolent offenses and information about arrests or accusations without convictions.
Also eliminated from the legislation is the requirement that an employer consider, and discuss in good faith with an applicant, information regarding the accuracy of criminal record information, the degree of rehabilitation or good conduct of the applicant, the nature of the offense and how long ago it occurred, the duties and setting of the job, and other information provided by the applicant.
Notably for employers, the legislation explicitly provides that employers may refuse to hire an applicant based on his or her criminal record unless the record has been expunged or erased through executive pardon. Subject to the same position-related exceptions noted above, the bill also prohibits employers from publishing advertisements soliciting applicants for employment where the ad provides that the employer will not consider applicants with criminal records.
As with the previous iteration, the bill does not provide applicants with the ability to sue employers in court for a violation of the law. Instead, the applicant would have to file an administrative complaint, and civil penalties were tweaked to $1,000 for a first violation, $5,000 for a second violation and $10,000 for each subsequent violation.
The Opportunity to Compete Act is slated to take effect seven months from enactment. Early indications are that Governor Christie will sign the bill into law, and we will monitor it closely.