Last month, New Jersey passed a new employment law that provides some protection to individuals who have criminal records. Officially named The Opportunity to Compete Act, the law is more commonly referred to as a “ban-the-box” law because it limits when employers can include a box on job applications to indicate whether the job candidate has been convicted of a crime.
The law was passed because it has become extremely common for large companies to conduct criminal background searches before they make hiring decisions. According to the New Jersey Legislature, this impacts tens of millions of adults who have criminal records, even though they can make a valuable contribution to the workforce. The Legislature considers this particularly important since finding employment significantly reduces the likelihood someone will repeat their criminal behavior.
The Act prohibits employers from requiring job candidates to indicate whether they have a criminal record, or from asking questions about a job candidate’s criminal record during the job application process. However, it permits employers to ask limited follow up questions if a job applicant discloses that he or she has a criminal history.
The law, which will not go into effect until March 1, 2015, permits employers to ask an individual about his or her criminal history once they decide the individual is their first choice for a position. It also permits employers to refuse to hire someone based on their criminal record. However, it prohibits employers from considering an arrest or accusation that did not result in a conviction (unless it is still pending) or to consider any criminal record that has been expunged or pardoned (with limited exceptions under federal and state law).
The law also restricts employer from considering older convictions (more than 5 years old for disorderly persons offenses, and generally more than 10 years old for crimes). However, the 10 year period does not apply to specific very serious crimes, including homicide, attempted murder, arson, sex offenses, robbery, kidnapping, human trafficking, weapon possession during certain crimes, burglary, aggravated assault, and terrorism.
If an employer asks an employee about his or her criminal history as permitted by the act, it is required to consider other factors including the nature of the offense; how long ago the offense occurred; the job duties and settings of the job; information about the accuracy of the criminal record; and information about the job candidate’s rehabilitation and good conduct.
With limited exceptions, the law prohibits employers from publishing advertisements which indicates they will not consider job applicants who have been arrested or convicted in the past.
The law includes exceptions to numerous provisions for job openings in law enforcement, corrections, the judiciary, homeland security or emergency management. It also invalidates and supersedes any county or local laws or regulations regarding using criminal background information in the employment context.
The law applies to both employees and independent contractors. However, it applies only to employers with 15 or more employees over a 20 week period. It expressly applies to the state, counties and municipalities, as well as job placement companies and employment agencies.
Unfortunately, violations of the law come with a very limited penalty. Specifically, the maximum penalty for violating the law is $1,000 for a first violation, $5,000 for a second violation, and $10,000 for any subsequent violations. The law does not include any other remedies, and does not permit a private claim against companies that violate it.