New Jersey Gets on the “Ban-the-Box” Bandwagon - A News Article from Creative Services, Inc. - Mansfield, MA

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New Jersey Gets on the “Ban-the-Box” Bandwagon

On August 11, 2014, New Jersey enacted its own “ban-the-box” law when Governor Chris Christie signed “The Opportunity to Compete Act.” This law, which becomes effective March 1, 2015, restricts the ability of covered employers to inquire and use criminal records. 

Since late 2010, five states (Illinois, Hawaii, Massachusetts, Minnesota, and Rhode Island) and six cities (Baltimore, MD, Buffalo, N.Y., Newark, N.J., Philadelphia, PA, Seattle, WA, and San Francisco, CA) have enacted ban-the-box legislation, with similar bills pending across the country. Many more jurisdictions restrict public employers from considering criminal history, but the law is trending to private employers.

What Employers Need to Know

  • The Act 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.
  • The law prohibits employers from asking any questions (whether oral or written) about an applicant’s criminal record during the initial application process.
  • Employers may inquire into criminal history only after the first interview has been conducted, whether in person or by other means.
  • Employers are prohibited from publishing any advertisement for employment that explicitly provides that the employer will not consider persons who have been arrested or convicted of one or more crimes or convictions.
  • Exemptions apply if the employment is for a position in law enforcement, corrections, the judiciary, homeland security, emergency management, or any other employment position where a criminal history check is required by law, rule or regulation, or where, by law, rule or regulation an arrest or conviction would preclude the person from holding such employment, or for a position designated by the employer as part of program to encourage employment of persons with arrest or conviction records.
  • An employer who violates this law shall be held liable for a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

The law provides strong protections for employers in that it creates no private right of action, sets no standard of care or duty for employers with respect to other laws, and deems inadmissible any evidence that an employer violated the law, except in an action by the Commissioner of Labor and Workforce Development to enforce the law.

In light of the expanding “ban-the-box” law movement, employers should:

  • Review and strengthen their compliance with federal, state and local employment laws which regulate use of an individual’s criminal history. 
  • Review their hiring policies to ensure compliance before March 1, 2015.
  • Review employment application materials, advertisements and other hiring materials to make any necessary revisions before March 1, 2015.
  • Refrain from asking questions about or looking into, considering, or requiring disclosure of an applicant’s criminal history during the pre-employment screening process.

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