As of March 1, 2015, New Jersey became the latest state to enact “ban the box” legislation under the Opportunity to Compete Act, N.J.S.A. 34:6B-11 et seq. The Act was approved in August of 2014 and became effective on March 1, 2015. This act is known informally as the “ban the box” law. This new law restricts most employers from requesting criminal history information from job applicants. This will have a huge impact on the hiring practices of employers who fall under the act.
1. What is the purpose for this Act?
The Act is meant to “remove obstacles to employment for people with criminal records” and “increase[e] the productivity, health, and safety of New Jersey communities.” It is meant to “improve the economic viability, health, and security of New Jersey communities and to assist people with criminal records to reintegrate into the community, become productive members of the workforce, and to provide for their families and themselves.” N.J.S.A. 34:6B-12.
2. Who and what does the Act apply to?
This Act applies to any employers that have 15 or more employees for more than 20 calendar weeks and does business, employs people, or takes applications for employment within the State. The Act specifically includes job placement, referral agencies, and other employment agencies.
The Act only applies during the “initial employment application process.” This is the period of time that begins when the job seeker first asks the employer about a position or job vacancy, and ends when the employer has conducted the first interview. The first interview need not be in person.
3. What the Act prohibit?
The Act prohibits a qualifying employer (one having 15 or more employees for more than 20 calendar weeks) from:
- Requiring the applicant to complete an employment application that asks about the applicant’s criminal record during the initial employment application process.
- Asking an applicant, whether written or verbal, about his or her criminal record during the initial application process.
The Act also applies to employer advertisements. An employer cannot advertise a job vacancy and state that the employer will not consider any applicant that has a criminal record. This specific prohibition does not apply to employment positions where a criminal history background check is required by law. This does not prohibit an employer from publishing other qualifications for employment, such as current and valid professional licenses, certificates, registrations, or minimum levels of education, training, or experience.
4. What does the Act NOT prohibit?
The Act does NOT prohibit an employer from asking follow up questions where a job seeker voluntarily discloses his or her criminal record.
The Act also does NOT prohibit an employer from requiring a job seeker to complete a second job application AFTER the first interview that asks about the job seeker’s criminal record.
The Act also does NOT prohibit an employer from refusing to hire a job seeker based on his or her criminal record, UNLESS the criminal record was expunged or erased. The refusal to hire must comply with all other applicable employment laws.
5. What are the penalties for violating the law?
The law provides civil penalties to any employer who violates this law:
First violation – Not more than $1,000.00
Second violation – $5,000
Each subsequent violation – $10,000 per violation
The fines are collectible by the Commissioner of Labor and Workforce development in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999.”
6. How do employers comply with the law?
At a minimum, employers should:
- Ensure that all job advertisement does not state the employer will not consider applicants who have been arrested or convicted;
- Remove all questions from paper and online employment applications that ask about an applicant’s criminal record – unless the position fits into an exception – when the form is completed prior to the first interview;
- Train all persons who conduct initial interviews that they are not to inquire about the applicant’s criminal record during the first interview; and
- If you require information about an applicant’s criminal record, adopt a new applicant screening process where the first interviews are conducted based on whether the applicant meets the minimum qualifications. As to those applicants who pass the screening process, employers can directly request criminal record history from the applicant or conduct a third party background check (which must comply with the federal Fair Credit Report Acts and similar state laws).