New Jersey Becomes Latest State to “Ban the Box”
September 10, 2014
Gov. Chris Christie recently signed legislation that limits the ability of New Jersey employers to rely on criminal records when making employment decisions also known as “Ban the Box”.
The Opportunity to Compete Act will take effect on March 1, 2015. When the legislation takes effect, New Jersey will join a small group of states to “ban the box”, the portion of a job application form requiring disclosure of past criminal record of an applicant. The legislation has been under consideration in this state for more than two years.
The Opportunity to Compete Act prohibits employers with 15 or more employees 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.” Applications may include any forms or questionnaires that job applicants are required to complete.
Covered New Jersey businesses are also banned from making “any oral or written inquiry regarding an applicant’s criminal record during the initial employment application process,” which is defined as “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.”
Under the new statute, covered employers cannot “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.” However, the law includes exceptions for law enforcement, corrections, the judiciary, homeland security or emergency management, as well as any other positions that legally require a criminal background check.
As highlighted in prior posts regarding New Jersey’s efforts to “ban the box,” the final law is more “employer friendly” than prior versions. In addition to eliminating a private cause of action, the final version also ensures that violations of the Opportunity to Compete Act cannot be used to establish liability under other employment statutes, such as the NJ Law Against Discrimination (LAD) or the Concerned Employee Protection Act (CEPA). Violations of the law, however, can still result in civil penalty of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.
If you have questions about the new “ban the box” law or want to ensure that your business is in compliance, please contact me or the Scarinci Hollenbeck Labor and Employment attorney with whom you work.