On March 1, 2015, the “Opportunity to Compete Act” took effect in New Jersey. This new law prohibits employers from inquiring about a job seeker’s criminal record until after the first interview. The law applies to entities doing business in New Jersey, and employing 15 or more employees over 20 calendar weeks. That number excludes domestic services employees, independent contractors, directors and trustees, but includes interns and apprentices.
Under this new law, employers cannot mention criminal history in any job advertisement, or make verbal or written inquiries regarding an applicant’s criminal record during the time between an applicant’s first inquiry about employment and the conclusion of the first interview. After the conclusion of the first interview, employers are free to inquire about, and refuse to hire an applicant because of, his or her criminal record, unless the relevant crime has been expunged and provided that such a decision is consistent with other applicable laws, rules and regulations (such as anti-discrimination laws and the Fair Credit Reporting Act). Employers, however, may legally ask about criminal histories sooner if an applicant voluntarily divulges the information. Employers may also legally inquire about criminal histories sooner if the applicant is seeking employment in law enforcement, corrections, the judiciary, homeland security, emergency management, or other positions for which a criminal background check is required by law, rule or regulation, such as banking.
Enforcing the New Act
The New Jersey Division on Civil Rights is responsible for enforcement of the act, and will be empowered to impose civil penalties up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation. Importantly, the act does not provide for a private cause of action, which means job applicants cannot personally sue employers for violations of the law.
As set forth above, this new law requires small and mid-sized employers to make immediate changes to their applicant screening process and related documents. Employers should immediately remove all questions regarding an applicant’s criminal history from all initial applications, forms, questionnaires or similar documents or collections of documents that an applicant is required to complete. Moreover, employers must remove all references to consideration of an applicant’s criminal history from all job postings and advertisements. Employers should also review the hiring process to ensure compliance, including the timing of criminal background checks, the distribution of mandatory notices, and the application of mandatory deferral periods. To ensure continued compliance, employers should provide training to employees who conduct job interviews and who make or influence hiring and personnel decisions to explain permissible and impermissible inquiries into, and uses of, criminal records.
Increased Opportunity for Job Seekers
From the job applicant’s perspective, this new law opens the doors of employers who would otherwise bar initial entry based on the existence of a criminal history. If an applicant has a criminal history, employers can still bar the applicant from employment on that basis after learning of it following the initial interview. Thus, if available, an expungement may be necessary for job applicants with criminal histories to proceed past the initial interview with an employer that maintains a general policy not to hire applicants with criminal histories.
At Shanahan & Voigt, LLC, we counsel small and mid-sized employers on compliance with New Jersey’s employment laws, including the Opportunity to Compete Act.