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New Jersey Joins the States which have “Banned the Box”

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In mid-August Governor Chris Christie signed “ban the box” legislation, making New Jersey the thirteenth state to adopt some format of the law. The actual name of the act Governor Christie signed into law is “the Opportunity to Compete Act”, and its goal is to restrict employers from asking about prior criminal convictions on job applications. The law applies to employers with 15 or more employees over 20 calendar weeks who do business, employ persons, or take applications for employment within the state of New Jersey, and will become effective on March 1, 2015.

The law prohibits employers from asking about an applicant’s criminal history until after the employer has conducted its first interview, and also proscribes employers from posting job advertisements stating that the employer will not consider applicants who have been arrested or convicted of a crime, “unless the advertisement seeks applicants for one of the exempt positions set forth in the Act.” These exempt positions include ones where an arrest or conviction background check is required by law, rule or regulation, or where the arrest or conviction by the person for one or more crimes would or may preclude the applicant from holding such employment. Some examples of exempt positions include law enforcement, corrections, the judiciary, homeland security, and emergency management (but this is not an all-inclusive list, so please check the details of the law carefully when conducting the hiring process.)

It is important to note that while the law limits when an employer can request criminal background information, it does preclude an employer from refusing to hire an applicant for employment based upon that person’s criminal record having been expunged or erased through an executive pardon. Employers should also be aware that the Equal Employment Opportunity Commission (EEOC) takes the position that use of criminal arrest records in refusing to hire applicants may constitute discrimination because the agency alleges a disproportionate amount of arrests and convictions among some protected classifications (in particular, African American and Hispanic males.)

New Jersey joins California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Mexico (2010), and Rhode Island (2013) which have some form of state-wide legislation that “ban the box”. (These vary widely from state to state so employers should check their own individual states to determine what they can and can’t do during the interview and hiring process. A very good source for the applicable laws and specific provisions can be found at Overall, a total of thirty states now have a local or state ban the box form of hiring policy in their laws.

However, all is not gloom and doom here for New Jersey employers. The law provides good protections for employers as well: Specifically, the law has no private right of action and shields employers from negligent hiring or retention suits by raising the standard to “grossly negligent”. It also deems evidence that an employer violated the terms of the law to be inadmissible in any legal proceeding, except in an action by the NJ Department of Labor (NJDOL) to enforce the law. Penalties are steep, but could be worse. If an employer is found by the NJDOL to have violated the law, civil penalties are not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. We very much hope that our NJ Contractor members take heed and don’t find themselves in the position of incurring a fine, let alone multiple fines for multiple offenses.

Hilary Atkins

Posted In: Legal

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