On August 11, 2014, New Jersey Governor Chris Christie signed the “Opportunity to Compete Act” (“Act”) into law. The Act will limit the ability of New Jersey employers to inquire about the potential criminal record of a job applicant. Under the new law, New Jersey employers will not be permitted to make such inquiries until at least after the first interview. The new law will go into effect on March 1, 2015, so employers will have several months to modify their job applications and prepare for the new changes.
Laws similar to the one signed in New Jersey are commonly referred to as “Ban the Box” bills, which references the fact that many employers include a check box on job applications asking whether the applicant has ever been convicted (or even sometimes arrested) for a crime. Often, applicants who check “yes” see their applications thrown in the trash and disqualified from consideration for the job as a result of their convictions.
The New Jersey law will apply to all employers, both private and public, that employ 15 or more employees over 20 calendar weeks. Covered employers will not be permitted to inquire about an applicant’s criminal record until the employer: (1) has conducted an interview; (2) made a determination that the applicant is qualified for the position and (3) selected the applicant as its first choice to fill the position. However, employers will be permitted to make an inquiry prior making a formal offer to the applicant. Similar to requirements under the federal Fair Credit Reporting Act, employers who make a conditional offer to an applicant but subsequently decide to not hire the applicant based on the results of a background check must provide the applicant with a copy of the background report and the specific reasoning for the revocation of the offer. The applicant must also be given ten days to dispute the background check or provide additional information for consideration, although the employer is still permitted to hire another applicant during this period.
Further, employers will not be permitted to inquire about certain criminal background information at any point in the application process, including expunged criminal records, disorderly conduct convictions in which the sentencing date or release from jail occurred five or more years earlier and convictions of fourth degree crimes in which the sentencing date or release from jail occurred 10 or more years earlier. Employers should not include statements in job advertisements stating that they will not consider applicants who have been arrested or convicted of a crime.
With the passage of this new law, New Jersey becomes the thirteenth state to pass a bill applicable to public employers and the sixth state to pass one applying to both public and private employers joining Hawaii, Illinois, Massachusetts, Minnesota [pdf] and Rhode Island [pdf].
New Jersey employers covered by the new law should review their job applications and hiring procedures to ensure that they are compliant with this law. Additionally, employers should consider training hiring managers to ensure that questions about the applicant’s criminal history are not solicited during interviews in violation of the law.
