On August 11, 2014, New Jersey joined a growing number of “ban the box” states when Governor Chris Christie signed into law the Opportunity to Compete Act. The Act, which goes into effect on March 1, 2015, precludes public and private employers with 15 or more employees from asking about a job applicant’s criminal record until after the first job interview, unless the applicant voluntarily discloses such information. The Act also prohibits employers from mentioning criminal history in any job advertisement. Employers cannot ask about criminal history in any employment application form or process before or during the applicant’s initial interview. Employers should ensure that their employment applications are compliant when the Act becomes effective.
Earlier inquiries may be made for applicants seeking employment in positions that require criminal background checks by law or regulation (such as bankers and police officers). After the initial interview, an employer may inquire about an applicant’s criminal record and can refuse to hire an applicant based upon a criminal record under certain circumstances.
An applicant cannot sue an employer for violating the Act; however, an employer may be fined up to $1,000 for the first violation; $5,000 for the second violation; and $10,000 for each subsequent violation.
The Act is one of several “ban the box” laws spreading across the U.S.—New Jersey now joins several other states, cities, and municipalities, including the City of Philadelphia, which have enacted legislation to ban inquiries into an applicant’s criminal history on employment applications and during the initial stages of the hiring process.
Matthew serves as Deputy Chair of Obermayer’s Litigation Department. He concentrates his practice on commercial litigation and employment law in the state and federal courts of New Jersey and Pennsylvania. Matthew prides...
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