New Jersey is the latest state to enact a ban the box measure applicable to employers. Meaning, employers cannot ask about a job applicant’s criminal history on the initial job application.
Governor Chris Christie signed The Opportunity to Compete Act (A1999) on August 11, 2014. This brings to 13 the numbers of states with a statewide ban the box measure in effect which in some way limits employers ability to ask a job applicant about their criminal history on the initial employment application.
Key provisions of the new law are:
- The law applies to an employer with 15 or more employees and prohibits that employer from requiring a job applicant to complete any employment application that inquires about the applicant’s criminal record during the initial employment application process. “Criminal record” includes arrests, detentions, indictments or other formal criminal charges, and any disposition arising from those. (Section 3)
- With certain exceptions for law enforcement or where required by law, an employer cannot publish any advertisement which explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses (Section 5)
- Violations of the law carry civil penalties ranging from $1,000 to $10,000. (Section 9)
- The law is effective March 1, 2015.
The newly enacted law preempts the Newark ordinance on ban the box, effective March 1, 2015. Note that this version of the law is not as onerous to employers as prior versions — click here for a prior posting on this issue.
The trend on passage of ban the box measures will continue at the state level and should therefore be considered holistically by companies as they consider their overall hiring and retention practices with respect to the use of criminal history records. Employers need to consider not only state and local ban the box measures, but also potential applicability of the federal Fair Credit Reporting Act, Title VII of the Civil Rights Act and state consumer protection laws which may limit the use of criminal history records. Also, note that some states and localities, while not specifically calling it a ban the box measure, for all intents and purposes have a ban the box measure spelled out in state guidance. One example is Arizona, where the Office of Arizona Attorney General, Civil Rights Division, provides examples of acceptable pre-employment inquiries on an application form, and while not prohibiting inquiring about prior convictions, states that they must be accompanied by a statement that a conviction will not be an absolute bar to employment. State guidance in Maine, Missouri and Nevada state that inquiries about arrests are unacceptable as they may lead to discrimination.
From a best practice perspective, employers should consider moving the “question” regarding criminal history to further in the hiring process. Remove it from the job application unless there is an absolute need to know about someone’s criminal history such as a situation where an employer wishes to avail themselves of the Work Opportunity Tax Credit, a Federal tax credit available to employers for hiring individuals from certain target groups including certain ex-felons hired within one year after their conviction or release from prison.