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New Jersey Enacts Ban-the-Box Legislation

By Michael Klazema on 9/19/2014

The Opportunity to Compete Act applies to both private and public employers in New Jersey. Employers with 15 or more employees over 20 calendar weeks and does business, employs persons, or takes applications for employment within the State are subject to the new law. Also subject to the law are job placement and referral agencies, and other employment agencies, interns, and apprentices. It does not apply to independent contractors, directors, or trustees. The Act applies to public state employees, including any county or municipality.

The Act prohibits employers from requiring an applicant for employment to complete an employment application that makes inquiries about an applicant’s criminal record, or from making any oral or written inquiries about criminal records during the initial employment application process. The “initial employment application process” is defined as the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or job vacancy or when an employer first makes an inquiry to an applicant for employment about a prospective employment position or job vacancy, and ending when an employer has conducted a first interview. But, if an applicant voluntarily discloses information about his or her criminal record during the initial employment application process, then the employer may make inquiries about the applicant’s criminal record before making a job offer.

These restrictions do not apply if the employment sought or being considered is for a position:

  1. in law enforcement, corrections, judiciary, homeland security, or emergency management;
  2. where a criminal history record background check is required by law, rule, or regulation, or where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding that employment as required by law, rule, or regulation; or
  3. designated by the employer to be part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons who have been arrested or convicted of one or more crimes or offenses.

The law does not prohibit employers from making inquiries about an applicant’s criminal history after the initial application process has concluded. Nor does it prohibit employers from making employment decisions based on an applicant’s criminal history, except that, employers may not consider any criminal record that has been expunged or erased through executive pardon.

Civil penalties will be assessed by the Commissioner of Labor and Workforce Development in an amount not to exceed $1,000 for the first violation; $5,000 for the second violation; and, $10,000 for each subsequent violation.

Most significantly, the law appears to explicitly pre-empt Newark’s ban-the-box law, which placed costly administrative burdens on employers wanting to use criminal history, even in circumstances that Newark’s law permitted. Our prior analysis of Newark’s law is available at: http://www.backgroundbiz.com/compliance/complianceupdate_10262012.html.

Assembly Bill 1999 is available here for review:  http://www.njleg.state.nj.us/2014/Bills/PL14/32_.PDF.


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