New Jersey’s Ban the Box Law Effective March 1, 2015

Angela Preston

New Jersey

The New Jersey ban the box law, titled The Opportunity to Compete Act, went into effect on March 1, 2015. The law impacts both private and public employers hiring in the Garden State. Like most ban the box laws, the statute does not prohibit employers from asking candidates about their criminal past nor does it prohibit criminal background checks, but it does change the timeframe within which an employer can make an inquiry about criminal history.

Ban on Criminal History Inquiries

New Jersey employers with 15 or more employees are now prohibited from asking candidates about their criminal histories on employment applications, making any inquiry about criminal history, oral or written, during the “initial employment application process.” Likewise, criminal background checks may not be conducted until after the initial employment process. The “initial employment application process” is defined as the period between first contact with the candidate and the first interview.

Here are some additional key points for employers:

Geographic Scope: The statute applies when a job is “in whole, or substantial part, within this state.”

No Use of Expunged or Pardoned Records: Employers may refuse to hire an applicant based on his or her criminal record unless the record has been expunged or erased through executive pardon.

Voluntary Disclosure: Employers are permitted to ask about criminal history if, during the “initial employment application process,” a candidate voluntarily discloses information about a criminal history.

Exempted Positions: Exceptions are made for positions in law enforcement, corrections, the judiciary, homeland security, or emergency management, or any other employment position where a criminal history record background check is required by law, rule or regulation, or where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule or regulation, or 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.

Advertising Restrictions: The bill prohibits employers from publishing job advertisements where the ad provides that the employer will not consider applicants with criminal records. This is subject to a few narrow exceptions listed above.

Definition of Employee: The definition of employee excludes any person employed in the domestic service of any family or person at the person’s home, any independent contractors, or any directors or trustees. The definition of employee includes interns and apprentices.

No Civil Cause of Action: There is no private civil cause of action for applicants to sue employers in court for a violation of the law. Applicants have to file an administrative complaint with the Commissioner of Labor and Workforce Development.

Penalties: Civil penalties for employers found in violation are $1,000 for a first violation, $5,000 for a second violation and $10,000 for each subsequent violation.

New Jersey Employer To Do List:

  • If you hire in New Jersey, review your hiring procedures and criminal background screening policies.
  • Review your job application and other forms to make sure you’re not asking about criminal history on the forms.
  • Train recruiters and HR employees to ensure that no inquiries are made until after a candidate’s initial interview.
  • Review your recruiting material, job descriptions, and advertisements to remove any mention of criminal background requirements or qualifications.
  • Check with your background screening provider to ensure compliance and that expunged or sealed records are not included in your background check reports.
  • Consult with your legal counsel and your background screening professionals to ensure compliance.

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Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
Angela Preston
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