New Law Restricts Ability Of Employers In New Jersey To Ask Job Applicants If They Have Criminal Records

On August 11, 2014, New Jersey Governor Chris Christie signed into law the New Jersey Opportunity to Compete Act, Pub. L. 2014, ch. 32 (the “Opportunity to Compete Act,” the “NJOCPA,” or the “Act”), which takes effect on March 1, 2015.  The Opportunity to Compete Act prohibits employers in New Jersey from requiring applicants for employment, “during the initial employment application process,” to complete any employment application that inquires about an applicant’s criminal record.

Because statutes such as the Opportunity to Compete Act effectively require employers to remove, from their employment applications, any check box that asks whether the applicant has a criminal history, such statutes are often termed “ban-the-box” laws.

The NJOCPA further bars employers in New Jersey from making, “during the initial employment application process,” any oral or written inquiry about a prospective employee’s criminal record.

The Opportunity to Compete Act defines the “[i]nitial employment application process” 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 the employer has conducted a first interview, whether in person or by any other means[,] of an applicant for employment.”

In other words, once an employer in New Jersey has conducted a first interview of a prospective employee, (i) the employer may require the prospective employee to complete an employment application that inquires about the prospective employee’s criminal history, and (ii) the employer may inquire, orally or in writing, about the prospective employee’s criminal history.

The New Jersey Department of Labor and Workforce Development is authorized to prosecute summary proceedings against employers which violate the Act.  An employer which is found to have violated the the NJOCPA must pay a civil penalty of not more than $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

The Opportunity to Compete Act does not create a private cause of action by a worker against an employer for violating the Act.

The NJOCPA applies to employers in the private sector in New Jersey which employ 15 or more individuals.  Further, the Act applies to State, county, and municipal governments and agencies in New Jersey which employ 15 or more individuals.  The new law does not apply to the U.S. government.

Among other exceptions, the NJOCPA permits a business in New Jersey, even before the employer has conducted a first interview of a job applicant, to make the applicant complete an employment application that asks about the applicant’s criminal record, and to ask, orally or in writing, about the applicant’s criminal record, if the employment sought or being considered is for a position:

• in law enforcement, corrections, the court system, homeland security or emergency management;
• where a criminal history background check is required by law;
• which an arrest or conviction would or may legally prohibit the job applicant from holding; or
• as to which the employer is legally restricted in its ability to engage in specified business activities based on the criminal records of its employees.

The Opportunity to Compete Act also bars employers in the Garden State from knowingly publishing, or causing to be published, any job advertisement that explicitly provides that the employer will not consider applicants who have been arrested or convicted of a crime, unless the advertisement solicits applicants for one of the above-described, exempt positions.

New Jersey is the sixth state to pass legislation that limits the ability of employers in the private sector to make job applicants disclose their criminal histories.  New Jersey joins Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island in this respect.

Despite the new statute, it remains lawful in New Jersey for an employer to terminate or to refuse to hire an individual because that individual has a criminal record.  The NJOCPA merely restricts the means by which an employer may obtain a job applicant’s criminal history.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New Jersey area, call Attorney David S. Rich at (347) 941-0760.