On August 11, New Jersey Gov. Chris Christie signed into law the
Opportunity to Compete Act, which will prevent employers from
asking job applicants about their criminal records until after the
first job interview. This makes New Jersey the fifth state to
expand "ban the box" protections to the private sector.
The new law takes effect on March 1, 2015, and will preempt any
similar local laws, such as the one passed in Newark in 2012.
The act applies to entities doing business in New Jersey and
employing 15 or more employees over 20 calendar weeks. That number
excludes domestic services employees, independent contractors,
directors and trustees but includes interns and apprentices.
The act's two prohibitions are that employers cannot (1)
mention criminal history in any job advertisement or (2) make
verbal or written inquiries regarding an applicant's criminal
record during the time period between an applicant's first
inquiry about employment and the conclusion of the first interview.
Thereafter, employers are free to inquire about, and refuse to hire
an applicant because of, his or her criminal record, unless the
relevant crime has been expunged and provided that such a decision
is consistent with other applicable laws, rules and regulations
(such as anti-discrimination laws and the Fair Credit Reporting
Act). Employers, however, may legally ask about criminal histories
sooner if an applicant voluntarily divulges the information.
Employers may also legally inquire about criminal histories sooner
if the applicant is seeking employment in law enforcement,
corrections, the judiciary, homeland security, emergency
management, or other positions for which a criminal background
check is required by law, rule or regulation, such as
banking.
The New Jersey Division on Civil Rights will be tasked with
enforcement of the act and will be empowered to impose civil
penalties up to $1,000 for the first violation, $5,000 for the
second violation and $10,000 for each subsequent violation.
Importantly, the act does not provide for a private cause of
action.
The act underwent several major revisions before it passed the full
New Jersey Senate and Assembly in June. Prior versions placed more
onerous restrictions and procedures on employers, such as requiring
conditional job offers before criminal background checks could be
conducted, enumerating specific criminal offenses that could be
considered by employers, and mandating specific procedural
requirements and forms to demonstrate proper balancing of prior
criminal histories against mitigating factors.
Employers have several months to familiarize themselves with the
act's requirements and ensure compliance, including by removing
any criminal background-related questions from their employment
applications.
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