On August 11, 2014, New Jersey joined the growing number of jurisdictions banning the box on job applications that require job applicants to disclose criminal history information. This new legislation, the Opportunity to Compete Act (the “Act”), is designed to give individuals who have “paid their debts to society” a fresh start with regard to opportunities for employment. The Act became effective on March 1, 2015, but there are many employers who are not aware of this law that affects them.
The Act, which applies to employers with 15 or more employees who do business, employ people or take applications for employment in New Jersey, prohibits employers from doing the following:
• You cannot post job advertisements indicating that persons who have been arrested or convicted of a crime will not be considered for employment
• Your job application cannot require disclosure of any criminal history.
This “Ban the Box’ legislature only pertains to the initial employment process, which includes both the job application and the first interview of the job applicant. However, an Employer is not prohibited from running a criminal background check on an applicant and advising them of this process after the first interview and a signed Released has been obtained.
In the following limited circumstances, the Act allows employers to request criminal history information before the first interview:
• If an applicant brings up his or her criminal history during the initial application process, the employer may make a limited inquiry regarding only the criminal history that the applicant disclosed;
• Where the applicant is being considered for a position in law enforcement, corrections, the judiciary, homeland security or emergency management;
• Where the applicant is being considered for a position where a criminal background check is required by law, rule or regulation;
• Where the applicant may be legally precluded from holding the position by virtue of his or her criminal background; and
• Where any law, rule or regulation restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees.
• Employers who violate the Act may be subject to civil penalties for noncompliance. A first violation carries a fine of $1,000; a second violation $5,000; and each subsequent violation $10,000.