Legislation has been introduced in New Jersey which will place restrictions on employers use of criminal history information when screening job applicants.  Similar to an ordinance that was recently enacted in Newark, New Jersey, the Opportunity to Compete Act (S. 2586/A. 3837) goes beyond a simple “ban the box” legislative effort.  Ban the box measures are those which seek to remove from the job application the question regarding whether one has been arrested or convicted of a crime.   As the bill’s title states, the legislation “establishes certain employment rights for persons with criminal histories” and some of those include the following:

  • An employer would not be able to consider one’s criminal history pre-application or ask about such on the job application. Such could only be considered after a conditional offer of employment has been made.
  • With the exception of certain crimes such as murder, arson or a sex offense, an employer would only be able to consider convictions dating back 10 years.
  • If an employer makes an adverse employment decision based on an applicant’s criminal history, the applicant must be provided a package which includes a copy of the results of the criminal report, a completed copy of the Applicant Criminal Record Consideration form and a copy of the Notice of Rights.  Applicants would then have 10 business days to provide evidence to the employer related to the accuracy and relevance of the criminal history inquiry.  If an employer maintains their decision to not hire the individual after this stage, they must complete another section of the Applicant Criminal Record Consideration Form and provide it to the job applicant within 45 days.
  • Civil fines for failure to comply with the provisions of the bill range from $500 to $7,500 depending upon an employers size and history of previous violations.

These are highlights of the bill.  If you would like to receive a copy of the legislation since it is not yet available online please email me at montserrat.miller@agg.com. The legislation also includes a copy of the Applicant Criminal Record Consideration form, which is similar if not identical to the form which must be used in Newark.  Note that Newark’s ordinance is broader in that it covers job advertisements and housing.   Note that these  steps would be in addition to requirements under the Fair Credit Reporting Act with respect to the use of consumer reports and in conjunction with the EEOC’s guidance on the use of arrest and conviction records for employment screening.