New Jersey "Opportunity to Compete Act" (Ban the Box)

New Jersey becomes the 6th state to "ban the box" for private/publicly traded employers, joining  Hawaii, Illinois, Massachusetts, Minnesota, Rhode Island, Baltimore, MD, Buffalo, NY, Rochester, NY, San Francisco, CA, Seattle, WA.  Other cities/states have passed similar laws that that impact state and/or city employees.

The law was signed by New Jersey Governor, Chris Christie, on August 11, 2014 and becomes effective on March 1, 2015.  The law applies to all private and publicly traded employers and/or employment agencies in the state of New Jersey with 15 or more employees.

Prohibited Inquiries

The law prohibits covered employers from requiring an "applicant for employment" to complete any "employment application that makes any inquiries regarding an applicant's criminal record during the initial employment application process." The law defines "Employment application" to mean any "form, questionnaire or similar document or collection of documents that an application for employment is required by an employer to complete." 

Affected employers are prohibited from making "any oral or written inquiry regarding an applicant's criminal record during the initial employment application process."  The "initial employment application process" means "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 any inquiry to an applicant for employment about a prospective employment position or job vacancy, and ending when an employer has conducted a first interview, whether in person or by any other means, of an applicant for employment." 

Exclusions

This regulation does not apply if the employment sought or being considered is for a position:

1. in law enforcement, corrections, the 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 such employment as required by any law, rule or regulation, or where any law, rule or regulation restricts an employer's ability to engage in specific business activities based on the criminal records of its employees; 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.

Voluntary Disclosure

If an applicant voluntarily discloses any information regarding his or her criminal record, either orally or in writing, during the initial employment application process, the law permits employers to "make inquiries regarding the applicant's criminal record during the initial employment application."

Use of an Applicant's Criminal Record

The law does not "preclude an employer from refusing to hire an applicant for employment based upon the applicant's criminal record, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon," and further (and cryptically) provides that the refusal to hire an applicant on this basis "is consistent with other applicable laws, rules and regulations."

Job Advertisements

Employers may not "knowingly or purposefully publish, or cause to be published, any advertisement that solicits applicants for employment where that advertisement explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses."  Excluded are employers who solicit applicants for positions in law enforcement, corrections, the judiciary, homeland security, or emergency management, or any other position where a criminal history record background check is required by law, where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by law, or where any law restricts an employer's ability to engage in specified business activities based on the criminal records of its employees.

Remedies

The law does not provide aggrieved individuals with a private right of action against an employer who has violated, or is alleged to have violated, the law.  Instead, the New Jersey Commissioner of Labor and Workforce can impose a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation. 

Other Employer Considerations

Aurico recommends that employers review their job applications on a regular basis with their legal counsel along with a review of the updated criminal guidance (April, 2012) regarding consideration of arrest and conviction records under Title VII of the Civil Rights Act of 1964.