By Deena Rosendahl, Esq.
Last month, Governor Chris Christie signed the Opportunity to Compete Act which prevents certain New Jersey employers from asking job applicants about their criminal history during the early stages of the sourcing/hiring process. Otherwise known as “Ban the Box”, the law bars employers from asking questions about a candidate’s criminal history during the early application and first interview stage of an employer’s hiring process.
What exactly does this mean for employers? First, when advertising for a position, ensure your ad does not contain any language which states you will not consider applicants who have been arrested or convicted of an offense. If you utilize a job application, make sure the application does not contain any questions regarding the applicant’s criminal record (e.g.: “Have you been convicted of a crime?” or “Have you been convicted of a felony?”). Finally, do not ask an applicant any questions about the existence of a criminal history during the first interview (whether that be telephone interview or in person).
After the first interview has occurred (whether by phone or in person), employers may then inquire about a potential candidate’s criminal background history. The law does not prevent employers from conducting criminal background checks and it does not prevent employers from considering an applicant’s criminal history. Rather, the law restricts the timing of when an employer may lawfully make this inquiry.
The law will take effect on March 1, 2015 and will apply to employers with 15 or more employees over 20 calendar weeks and who do business, employ persons or take employment applications within the State of New Jersey. There are some exceptions (law enforcement, judiciary and other positions where a criminal history background check is required by statute or other regulation).
Employers and employment agencies who violate the law risk civil penalties of up to $1,000 for the first violation, up to $5,000 for a second violation, and $10,000 for each subsequent violation.
Separate and apart from the Opportunity to Compete Act, Employers are reminded that when a criminal record is found to exist, Employers must take careful measures to ensure they don’t run afoul of Equal Employment Opportunity laws. Before making a hiring decision based upon the results of a criminal background check, Employers must still consider (i) the nature and gravity of the offense or conduct, (ii) the time that has passed since the offense and/or completion of the sentence; and (iii) the nature of the job sought and how the conviction may relate to that positon.
For questions on this new law and the use of criminal background checks, contact Deena B. Rosendahl, Esq. at (201) 947-8855 or via email at Drosendahl@northjerseyattorneys.com.