The New Jersey Legislature recently introduced a bill titled the Opportunity to Compete Act that would impose significant restrictions on criminal background checks in connection with the hiring process. (Click here for a copy of the proposed law). If passed, the law would prohibit employers from making inquiries into a candidate's criminal history during the application process. Instead, employers would only be permitted to inquire about and consider information concerning a candidate's criminal history after making a conditional offer of employment. Even then, the employer would have to provide a standard written notification of rights to the candidate and seek his or her consent to do so.
Substantively, the Act outlines what types of criminal history could be considered. Employers would be permitted to consider: convictions for murder or attempted murder, arson, sex offense, or terrorism, regardless of when those convictions occurred; convictions for any crime of the 1st-4th degree within the preceding 10 years; convictions for disorderly persons offenses within the preceding 5 years; and any pending criminal charges. Employers would not be permitted to consider: non-pending arrests that did not result in a conviction; any record that has been erased, expunged, or pardoned; and any adjudication of delinquency of a juvenile. Finally, employers would be required to consider: information concerning rehabilitation; information concerning the accuracy of the criminal record produced by the candidate; the amount of time since the conviction; and the relationship of the crime to the position sought.
Procedurally, the Act would mandate the process that an employer would have to follow if it wished to consider an applicant's criminal history in connection with the hiring decision. First, the employer would have to make a good faith effort to discuss any concerns with the candidate and provide him or her an opportunity to explain the results of the criminal history. Second, if the employer makes an adverse employment decision, it would have to provide the candidate with a package containing the following information: written notification of the decision; a copy of the results of the criminal history inquiry; a completed copy of the standardized "Applicant Criminal Record Consideration Form" (this form is included in the definitions section of the Act); and the standardized "Notice of Rights" form (this form is also included in the definitions section of the Act). Third, a candidate who receives an adverse employment decision would have 10 business days from receipt of the package to provide additional information regarding the criminal history inquiry results. Employers would not be required to hold the position open during this time. Finally, if the employer maintains its decision, it must: complete part B of the Applicant Criminal Record Consideration Form and provide the candidate with a second copy of the Applicant Criminal Record Consideration Form and a written notice of its final decision.
The New Jersey Division on Civil Rights would be charged with enforcement of the Act. There is no private cause of action in the current version of the Act. The Division on Civil Rights would have the authority to impose civil fines for violations of the Act, in amounts of up to $7,500, depending on the size of the employer, the type of violation, and whether it is a repeat or first-time violation.
This Act is still kicking around in the Legislature. Because of the ongoing debate concerning the significant changes this Act would make and the political position of New Jersey's Governor, it is likely to be amended before receiving the Gov. Christie's approval. We will keep you updated on the progress of the Act and any future amendments.
Originally published on the Employer's Law Blog
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