NJDOL Publishes “Ban the Box Regulations”

The New Jersey Department of Labor (NJDOL) recently released implementing regulations for the New Jersey Opportunity to Compete Act. As New Jersey employers should be aware, the state’s “ban the box” law took effect on March 1, 2015.

Under the Opportunity to Compete Act, New Jersey employers are precluded from inquiring about job applicant’s criminal background during the initial employment application process. They are also precluded from publishing job advertisements stating that they will not hire workers who have been arrested for or convicted of a crime.

The NJDOL’s proposed regulations clarify a number of lingering questions regarding the law. Below is a brief summary:

Covered employers:

The law applies to any person, company, corporation, firm, labor organization, or association which has 15 or more employees over 20 calendar weeks and does business, employs persons, or takes applications for employment within New Jersey. Under the proposed rule, 15 or more employees over 20 calendar weeks” means 15 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

Covered employment:

The statute only applies if the physical location of the prospective employment is in whole, or substantial part, within New Jersey. The rule clarifies that the physical location of the prospective employment will be considered in “substantial part” within the state if the employer has reason to believe at the outset of the initial employment application process that the percentage of work hours which will be spent performing work functions within New Jersey by the employee will equal or exceed 50 percent of his or her total work hours.

Violations:

Under the proposed rule, an employer violates the Opportunity to Compete Act when an employer makes any oral or written inquiry to anyone, including to the applicant, during the initial employment application process regarding an applicant’s criminal record. However, if an applicant voluntarily discloses information about his or her criminal record, the employer may make inquiries to anyone, including to the applicant, during the initial employment application process regarding the applicant’s criminal record.

Administrative penalties:

In determining what constitutes an appropriate administrative penalty for a particular violation, the proposed rule sets forth that the NJDOL will consider the following factors: the seriousness of the violation, the past history of previous violations by the employer, the good faith of the employer, the size of the employer, and any other factors which are deemed to be appropriate under the circumstances.

The proposed rule also provides that employers will have the opportunity to appeal the penalty assessment to the NJDOL Commissioner.

The rule will be published in in the New Jersey Register on March 16, 2015. Accordingly, it is important to highlight that the draft rule proposal is not binding until the 60-day comment period expires and the rule is finalized.

According to the NJDOL, it published the rule early to “assist the regulated community in its efforts to comply with the Opportunity to Compete Act in that it should eliminate some confusion as to how the Department interprets the law and the method by which the Department intends to enforce the law.”