Criminal Background check 15244698_LargeOver the past five years, many cities, counties, and states have passed so-called “ban the box” laws – a trend that HR Legalist has been following in prior blog posts. In their most basic form, these laws require employers to remove questions about criminal history from their initial application forms.  However, some laws are more restrictive for employers.  For example, Philadelphia’s revised “Fair Criminal Records Screening Ordinance” (effective on March 14, 2016, and summarized by HR Legalist here) requires employers to disregard older convictions, undertake a case-by-case review of the nature and circumstances of prior convictions, and provide written notice to candidates rejected due to their criminal backgrounds.

New Jersey’s ban the box law, the “Opportunity to Compete Act” (summarized by HR Legalist here) has been in effect since March of 2015. The law requires employers to delay criminal history inquiries until after the first interview, with exceptions for certain positions such as law enforcement, or where background checks are required by law.  Regulations published last month (available here by navigating to Title 12, Chapter 68) and the New Jersey Department of Labor’s responses to public comments (available here by searching for “Opportunity to Compete Act Rules”) clarify the scope of the law and answer some questions.

1)            What employers are subject to the law?  The law applies to any company with 15 or more employees over 20 calendar weeks.  The regulations clarify that it does not matter whether these 15 employees work inside or outside of New Jersey, as long as the company does business within New Jersey.

2)            What counts as the “first interview”?  The regulations clarify that an interview includes any “live, direct contact” with the applicant, including telephone and video conference interviews.  This means that employers who conduct preliminary interviews via telephone or video conference, or conduct a series of separate in-person interviews, can conduct a background check or inquire about criminal background after that interview is over.  New Jersey does not require that any type of “conditional offer” be extended prior to running a criminal background check.

3)            What if we hire employees in multiple states?  Originally, the law did not specify whether multi-state employers would have to use a separate job application form in New Jersey.  The regulations allow multi-state employers to keep a criminal record question on their application form, as long as, immediately before the criminal record question, the form states that “an application for a position the physical location of which will be in whole, or substantial part, in New Jersey is instructed not to answer this question.”

4)            Can we still “google” candidates or search social media before the first interview?  In response to public comment, the Department of Labor confirmed that internet or public record searches concerning an applicant’s criminal record are considered “oral or written inquiries” under the statute.  Therefore, any searches specifically seeking information about criminal histories must be delayed until after the first interview.  However, nothing in the law or regulations prohibits general internet searches consisting of only the candidate’s name.  Regarding social media, keep in mind that New Jersey law prohibits employers from asking applicants for their usernames and passwords.

5)            Can we warn candidates of future screenings?  In response to public comment, the Department of Labor advised that a statement on the initial application, to the effect that the application “may later be subject to a criminal background check as a condition of employment” is permitted.

“Ban the box” laws have gained momentum in the past several years, and are probably here to stay. The law and regulations in New Jersey may require some employers to change their forms and hiring processes, but they are less onerous than some other “ban the box” laws.  With careful planning and the assistance of employment counsel, New Jersey employers can comply with the law while still making informed hiring decisions.

 

 


Ivo Becica- 3394Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or ivo.becica@obermayer.com.