NJ Adopts “Ban the Box” Prohibiting Inquiries into Criminal History During Initial Employment Application Process

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act” – more commonly referred to as “ban the box” – which prohibits employers from inquiring into a job applicant’s criminal record during the initial employment application process. The law will take effect on January 1, 2015 and preempts any local laws (such as Newark’s 2012 ordinance) addressing the same subject.

The New Jersey “ban the box” law applies to any public or private employer with at least 15 employees who does business or accepts employment applications in the State of New Jersey. Federal employers, however, are exempt. Covered employers are precluded from asking job applicants – either on a job application form or through a verbal or written request – about their criminal record during the initial employment application process. This initial process includes the period beginning with an applicant’s first inquiry to an employer about a prospective position (or an employer’s first inquiry to an applicant about a prospective job) and ending with an employer’s first interview of the applicant. If, however, an applicant voluntarily discloses information regarding his or her criminal record during the initial employment application process, then the employer may inquire about it.

In addition, under the new law, covered employers can not publish any job advertisements which state that they will not consider applicants who have been arrested or convicted of criminal offenses. This prohibition does not apply to advertisements for jobs in law enforcement, corrections, the judiciary, emergency management, homeland security, or any other position where a criminal background check is mandated by law or a criminal conviction or arrest would legally preclude employment.

The new law does not prohibit an employer from inquiring about an applicant’s criminal history or otherwise conducting background checks once the initial employment application process is complete, either through an application form or other means. In addition, the law does not bar an employer from making a hiring decision based on an applicant’s unexpunged or unpardoned criminal record. However, employers should remain cognizant of the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions and the recent guidance issued jointly by the Federal Trade Commission (FTC) and EEOC on employer use of background checks in hiring or firing decisions.

While the “ban the box” law does not offer aggrieved job applicants a private right of action, employers who violate the new law shall be subject to a fine of $1000 for a first violation, $5000 for a second violation and $10,000 for every subsequent violation.

In preparing for the statewide “ban the box” law to take effect, covered employers should revise any employment application forms used during the initial employment application process to eliminate inquiries into the applicant’s criminal record. In addition, employers should train their hiring managers on what inquiries are precluded during initial interviews with applicants. Further, covered employers should make sure that any job postings and advertisements are compliant with new law.

Please feel free to contact any attorney in the Gibbons Employment & Labor Law Department for assistance in complying with this new legislation.