New Jersey may soon be the latest state to “ban the box.” Late last month, the state legislature passed the Opportunity to Compete Act, which would restrict the use of criminal background checks by New Jersey employers. The bill now awaits Gov. Chris Christie’s signature.
Six states—Hawaii, California, Connecticut, Massachusetts, Minnesota and New Mexico—have previously passed measures to remove barriers to employment for individuals with criminal records by restricting the use of criminal background checks by employers. These laws “ban the box” by eliminating the check box on many employment applications that requires applicants to disclose whether they have a criminal conviction in their background.
Under the proposed New Jersey employment law, employers would be prohibited from making certain inquiries into an applicant’s criminal background during the early stages of the hiring process. They would also be precluded from publishing an advertisement soliciting candidates for employment that states that the employer will not consider a candidate who has been arrested for or convicted of a crime or offense. However, the bill headed to Gov. Christie’s desk is more employer-friendly that the initial measure proposed in December 2013.
Amendments to the bill allow an employer to make inquiries regarding a job applicant’s criminal record after the conclusion of the initial application process, which is defined as ending when the employer has conducted a first interview of the applicant. The initial version permitted the employer to make those inquiries only after selecting the applicant as the employer’s first choice to fill the position.
The amendments also eliminate all restrictions on what types of criminal background information employers can seek, and rely upon, once the initial application process ends, including information about offenses which occurred longer ago than specified periods of time, information about minor nonviolent offenses and information about arrests or accusations without convictions. However, records that have been expunged or erased through executive pardon may still not be considered.
Employers are also no longer required to consider, and “discuss in good faith with an applicant,” information regarding the accuracy of criminal record information, the degree of rehabilitation or good conduct of the applicant, the nature of the offense and how long ago it occurred, the duties and setting of the job, and other information provided by the applicant.
As in the initial proposal, employers who violate the law are subject to a civil penalty of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. There is still no private cause of action for aggrieved applicants.
We will be closely tracking the status of the bill and will provide updates when they become available.
If you have any questions about the proposed ban the box legislation or would like to discuss your company’s hiring practices, please contact me, Ramon Rivera, or the Scarinci Hollenbeck Labor and Employment attorney with whom you work.