The City of Newark, NJ has passed an ordinance that seriously limits employers’ ability to conduct criminal background checks. The ordinance is effective November 18, 2012, and applies to employers with five or more employees that do business, employ, or take applications for employment within the city of Newark, including the City of Newark and City departments. The City’s action follows a trend that we have seen in other major cities like Philadelphia, and more recently, Seattle and Washing D.C. Article One deals with employment, and Article Two of the ordinance deals with housing. Under Article One, an employer cannot conduct any pre-application inquiries related to the criminal history of any applicant, and is required to make a good faith determination that the relevant position is of such sensitivity that a criminal history inquiry is warranted. Only after the applicant has been qualified and a conditional offer has been made can the employer inquire about criminal background.
The ordinance restates requirements that exist under the FCRA and in the EEOC guidelines, like requiring written consent of the applicant. The consent must inform the applicant that, following any adverse decision, the applicant or employee will have the right and opportunity to present evidence regarding the accuracy and relevance of the background check. This requirement appears to be in addition to pre-adverse and adverse action requirements of the FCRA, which raises preemption questions.
As for the content of the background check, employers may inquire about:
•Indictable offense convictions for eight (8) years following the sentence, including termination of any period of incarceration;
•Disorderly persons convictions or municipal ordinance violations for five (5) years following the sentence, including termination of any period of incarceration; and
•Pending criminal charges, which may include cases that have been continued without a finding, until such time as the case is dismissed.
Employers are prohibited from inquiring about or taking adverse action against any applicant or employee on the basis of:
•Any arrest or criminal accusation made against the applicant or employee, which is not then pending against that individual and which did not result in a conviction;
•Any records which are erased, expunged, the subject of an executive pardon, or otherwise legally nullified; and
•Any juvenile adjudications of delinquency or any records which have been sealed.
Convictions for murder, voluntary manslaughter, and sex offenses punishable by a term of incarceration in state prison are not subject to the 8 year limitation.
If an employer runs a criminal background check, the ordinance enumerates factors to evaluate the applicant:
1. The nature of the crime and its relationship to the duties of the position sought or held
2. Any information pertaining to the degree of rehabilitation and good conduct, including any information produced by the applicant or employee, or produced on his or her behalf
3. Whether the prospective job provides an opportunity for the commission of a similar offense(s)
4. Whether the circumstances leading to the offense(s) are likely to reoccur
5. The amount of time that has elapsed since the offense(s) and whether the employer factored that into the employment decision; and
6. Any certificate of rehabilitation issued by any state or federal agency
If these sound familiar, many of these factors are discussed and recommended in the EEOC’s guidance on criminal background checks, which was published in April and we told you about here. The ordinance requires that the factors be documented on a special form–the Applicant Criminal Record Consideration form, which explains how the employer should document the decision to revoke a conditional offer. An applicant who has a conditional offer revoked subsequent to a criminal record inquiry must be provided with a copy of the Applicant Criminal Record Consideration form.
The adverse action process is different than the federal process, providing the applicant with an opportunity to respond. The applicant has 10 business days after receipt of the notices to contact the employer and request additional consideration, all which must be carefully documented by the employer.
Despite the carve-out that the new requirements do not apply when a federal or state law requires a criminal background check, the new law is sure to raise questions and place a heavy burden on Newark employers. This is yet another example of legislation going forward without the appropriate input from all of the stakeholders. I would love to hear what you think.