As a reminder, New Jersey’s “Opportunity to Compete Act,” otherwise known as “Ban the Box” law goes into effect on March 1, 2015. The Act applies to employers of 15 or more employees. It also applies to companies that take applications in New Jersey, state, county and municipal employers and employment agencies. With few exceptions, the Act prohibits employers from inquiring about criminal records during the application process.
Specifically the Act prohibits employers from requiring that an “applicant for employment” complete any “employment application that makes any inquiry regarding an applicant’s criminal record during the initial employment application process.” The initial employment process is defined broadly to include the period starting with the applicant’s first inquiry regarding a potential position with the employer, or the employer’s first contact with the candidate about a potential position. It ends after the first interview.
The Act does not bar inquiries about criminal background after the initial interview process has occurred. Also, there are a number of exceptions, including:
- positions in law enforcement, corrections, the judiciary, homeland security or emergency management;
- where a criminal background check is required by law or where the arrest or conviction of certain crimes would preclude employment; or
- where the employer has a program designed to facilitate the employment of those with criminal records.
Additionally, if a candidate voluntarily discloses his/her criminal background, an employer is permitted to follow-up on this disclosure and make further inquiry.
Currently, New Jersey’s “Opportunity to Compete Act” does not provide a private cause of action to applicants. But, the Commissioner of Labor can impose a fine of $1,000 for the first violation, $5,000 for a second, and thereafter, $10,000 per violation.
TO – DO LIST
New Jersey is not the only state to enact a ban-the-box law. So, multi-state employers, and employers who solicit candidates in multi-states, should be sure to check with counsel to see if they are covered by New Jersey’s or another state’s similar law. If you are subject to a ban-the-box act, now is the time to take action:
- Review employment applications
- Review job advertisements
- Review online subscriptions that advertise
- Provide training to those involved in the hiring process
- Review hiring best practices