New Jersey employers should take note that the Department of Labor and Workforce Development has now issued regulations pursuant to the Ban the Box Law which was enacted earlier this year. The regulations, or conduct backround checks concerning, can be accessed here. As previously reported, the Ban the Box Law restricts employers' ability to inquire about the criminal conviction history of applicants during the hiring process. It is recommended that covered employers take steps to make sure their policies and practices comply with the regulations.

Among the key provisions of the regulations are the following:

  • The statute states that the initial application process ends when the employer has conducted a first interview. Under the regulations, an "interview" includes any any live, direct contact by the employer with the applicant, whether in person, by telephone or by video conferencing, to discuss the employment being sought or the applicant's qualifications. The interview requirement is not satisfied by an email exchange or the completion of a written questionnaire.
  • If an applicant brings up the subject of his or her criminal record during the initial application process without any prompting, the employer is free to engage in appropriate inquiries about that issue.
  • The employer may use an application form which states that applicants will be subjected to a criminal background check as a condition of employment.
  • Employers with multistate operations are permitted to use a single nationwide form provided that it includes instructions to New Jersey applicants that they should not answer the specific questions prohibited by the statute.
  • Employers may not conduct internet and public record searches concerning applicants' criminal records before the conclusion of the initial employment application process as defined by the statute.
  • The statutory restrictions apply with respect to the "hiring" of unpaid interns and apprentices.
  • The statute encompasses all employers which have 15 or more employees over 20 calendar weeks of a year company-wide. This means that multistate employers must comply when hiring for positions in New Jersey and when hiring New Jersey residents, even if they have no New Jersey presence.

Additionally, we take this opportunity to offer timely reminders about mandatory employee notices. The end of each year can be a time for many to take unused vacation days and enjoy the holidays, but for New Jersey employers it is also the deadline for distribution of two mandatory notices to employees. The required notices - which must be issued annually by December 31 - are required pursuant to the Conscientious Employee Protection Act ("CEPA") and the Law Against Discrimination. While it is recommended that employers circulate the notices at the beginning of each year, those employers that have yet to do so should not delay in effecting compliance.

First, employers with 50 or more employees must provide employees with a Gender Equity Notice. A link to the notice is provided here. A link to the New Jersey poster packet is provided here. Employers must provide this notice in English and Spanish. The notice can be distributed by email, in print (including with a pay envelope or as an attachment to an employee handbook), or posted on an internet or intranet site if same can be accessed by all employees and the employer provides the employees with notice of the posting. The employer must obtain acknowledgments of receipt from all employees, which can be manually signed or e-verified. The employer has to obtain the signed acknowledgments within 30 days of the posting. The contents of the notice should be posted continually as well, and provided to new employees at the time of hire.

Second, employers with 10 or more employees must distribute the CEPA Notice in both English and Spanish. A link to the notice is provided here. The notice can be distributed by email provided all employees have regular email access. There is no requirement for obtaining acknowledgments of receipt. However, employers may wish to do so because having such an acknowledgment in hand may provide a potent weapon in the event an employee claims that he or she engaged in protected activity under CEPA and was punished for doing so. The notice must also be posted or displayed on the employer's website if all employees have regular website access.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.