If you’re looking for a job, and have a prior criminal conviction, there’s some good news: the job market appears to be recovering, and the New Jersey Opportunity to Compete Act —known as the “Ban the Box” law — goes into effect on March 1st. The new law prohibits employers with 15 or more employees who do business, employ persons, or take applications for employment within the state of New Jersey from asking in their initial hiring communications about an applicant’s criminal history.
“The Box” refers to the common application question inquiring whether an applicant has a prior criminal conviction. The law also prohibits employers from including statements in job postings or ads stating that they will not consider applicants who have been arrested or convicted of a crime, unless the posted position is exempt under the Act. The law is intended to help cut down on automatic, wholesale rejection of individuals with prior convictions which may or may not be relevant to the employment requirements.
Potential employers also can’t ask, either directly or indirectly by using an investigative service, about an applicant’s criminal background until after the initial employment application process, including an interview, is complete. Once that point is has passed, employers are permitted to ask questions regarding an applicant’s criminal background and conduct a background investigation as usual before making a specific offer of employment. An employer is still permitted to take the results of that investigation into account when deciding whether to offer employment to an applicant. Potential employers still may not inquire into criminal records that have been expunged or erased through executive pardon.
Certain positions are exempt, so employers in these fields may still include questions about an applicant’s criminal history in their initial solicitation for applications. These include jobs in law enforcement, corrections, homeland security and emergency management positions, as well as positions which by local, state or federal law, rule, or regulation may not be held by individuals with convictions or arrests. Basically, if having a clean criminal record is a requirement to perform the essential functions of an employee’s job, an employer may ask about that status as a gatekeeping requirement.
More than forty cities, eleven states, and the District of Columbia have similar employment laws applicable to either public or private employers (or both), some of which extend the protections much further for applicants. (For instance, by requiring that an employer make a good-faith effort to discuss an applicant’s lawfully-revealed criminal record if it is of concern.) The patchwork of local and state laws can be confusing. New Jersey’s law expressly provides that it preempts most local laws and ordinances regarding criminal histories in the employment contexts (with some very narrow exceptions involving municipal operations). As one notable example, the City of Newark’s much stricter “ban the box” law will be preempted, and the broader New Jersey rule will apply throughout the state.
The Act currently does not provide for a private right of action for any violations. An applicant may file an administrative complaint; violating employees are subject to civil penalties of $1,000 for a first violation, $5,000 for a second violation, and $10,000 for subsequent violations. In the future, however, amendments to the Act may be possible to provide for private rights of action by rejected applicants against employers. In fact, the initial drafts of the Act included individual rights to recover damages in private suits for discrimination claims, failure to hire, and “gross negligence” in the hiring process (or other New Jersey negligent hiring claims). Many other state and local ordinances provide the right to private suits. In the meantime, if you have experienced a prospective employer’s violation of the “Ban the Box” law, we can help you file an administrative complaint and explain your rights — give us a call 973-440-2311