Reviewing a Criminal RecordOn March 1, 2015, the Opportunity to Compete Act (the “Act”) went into effect in New Jersey.

Governor Chris Christie signed the Act into law last year in an effort to preclude 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.

Ban the Box laws have become increasingly popular across the United States.  On February 23, 2015, Georgia enacted Ban the Box legislation.  New Jersey and Georgia now join several other states, cities, and municipalities, including the City of Philadelphia, that have enacted legislation to ban inquiries into an applicant’s criminal history on employment applications and during the initial stages of the hiring process.

The Act prohibits employers from posting job advertisements that state that persons who have been arrested or convicted of a crime will not be considered for employment.   The Act also prohibits requiring applicants to disclose their criminal history in an employment application form or process before or during the applicant’s initial interview. Some exceptions apply:  The Act allows employers to request criminal history information before the initial interview for applicants seeking employment in positions that require criminal background checks by law or regulation (such as bankers, law enforcement, corrections, the judiciary, homeland security or emergency management). After the initial interview, an employer may inquire about an applicant’s criminal record and may deny an offer of employment based upon an applicant’s criminal record.  However, an employer may not consider a criminal record that has been expunged or erased through executive pardon.

Employers who violate the law could face civil penalties of up to $1,000 for the first violation; $5,000 for the second violation; and $10,000 for each subsequent violation. Violations will be enforced by the Commissioner of Labor and Workforce Development.

What does this mean for employers?

The following are suggested for New Jersey employers with 15 or more employees to assure compliance with the Act:

  1. Remove any language from job advertisements and/or postings indicating that the employer will not consider an applicant who has been arrested or convicted of a crime or offense in the past.
  2. Also remove any language from job applications that requires disclosure of criminal history.
  3. Examine their hiring policies and ensure that managers and human resources personnel are properly trained to navigate the directives of the Act.

As always, HRLegalist urges our readers to consult legal counsel if you have any questions about Ban the Box laws in New Jersey or any other jurisdiction.