An employer will be prohibited from inquiring about, requiring an applicant to disclose, or taking any adverse action based on (i) an arrest or criminal accusation not currently pending; (ii) records which have been erased, expunged, or subjected to an executive pardon; and (iii) a juvenile adjudication of delinquency or records that have been sealed. The ordinance does not prohibit an employer from discussing criminal backgrounds if an applicant voluntarily discloses their criminal history without solicitation.
A criminal background check can be conducted only after the employer makes a “good faith” determination the job being applied for is sensitive enough that a criminal background inquiry is needed and makes a conditional job offer. A written consent must be provided and the form of consent must include notice that (i) a criminal background check will be conducted, and (ii) the applicant or employee has the right and opportunity to present evidence regarding the accuracy and relevance of the background check. Except for convictions for murder, voluntary manslaughter, and sexual offenses requiring registry, employers may only inquire about convictions up to 8 years from sentencing, disorderly persons conviction or municipal ordinance violations up to 5 years from sentencing, and pending criminal charges.
The ordinance requires employers to consider the following factors when basing a hiring decision on a criminal background and to document its analysis of six factors using an “Applicant Criminal Record Consideration” form:
- The nature of the crime and relationship to the duties of the position;
- Information pertaining to the degree of rehabilitation and good conduct;
- Whether the prospective job provides the applicant the opportunity to commit a similar crime;
- Whether the circumstances leading to the offense are likely to occur;
- The length of time that has elapsed since the offense; and
- A certificate of rehabilitation issued by any state or federal agency.
If the employer makes an adverse employment decision after conducting a criminal background check, the ordinance requires the employer to:
- Notify the applicant or employee of the adverse employment decision;
- Provide the applicant or employee with a photocopy of the result of the criminal background check, indicating the particular conviction(s) relating to the responsibilities of the job, and a copy of the Applicant Criminal Record Consideration form;
- Provide the applicant or employee with a written notice of rejection, specifically stating the reasons for the adverse decision and including the employer’s consideration of the six factors outline in the Applicant Criminal Record Consideration form; and
- Advise the applicant or employee of the opportunity for review, including how the applicant or employee may present evidence related to the employer’s consideration as outlined in the Applicant Criminal Record Consideration form, and what kinds of evidence he or she may present.
The employer must modify its background check processes to account for the ordinance’s requirement that the notices mentioned above must be sent in one package by registered mail to the applicant or employee. This differs from the Fair Credit Reporting Act (FCRA) requirement of a pre-adverse-action notice followed by an adverse-action notice. (The notice described above could be combined with the adverse-action notice under the FCRA. It could not be combined with the pre-adverse-action notice, because the FCRA requires an employer to send the pre-adverse action notice before making a decision, where the Newark ordinance requires the notice when making a decision.)
The employer must give the applicant or employee 10 business days after receipt of the notices to respond and present information related to the accuracy and relevance of the criminal background check results. Prior to making a final employment decision, the employer must review all information received and document the following in writing:
- The information and evidence provided;
- The employer’s consideration of this information and evidence; and
- The employer’s final action, specifically stating the reasons for the final action taken.
Violators of the ordinance will be subject to a fine of up to $500 for an initial violation of the ordinance or if no violation has occurred within the previous three years. A fine of up to $1000 may be accessed against an employer if the violation is preceded by another violation within the previous three years.
A copy of the ordinance is available at: http://www.employmentlawalert.com/uploads/file/12-1630(1).pdf
If you have any questions, please contact your client relations representative.