Lucky No. 13

The law bars any employer with more than 15 employees over 20 calendar weeks from making initial hiring decisions based on an applicant’s criminal record. The law becomes effective March 1, 2015 and provides for civil penalties of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

The New Jersey law prohibits covered employers from asking an applicant on an employment application (or orally) about the applicant’s criminal record during the initial employment application process. The “initial employment application process” is defined in the law as the period “beginning when an applicant for employment first makes an inquiry to an employer about a prospective job vacancy or when an employer first makes an inquiry to an applicant for employment.” The initial employment application process ends when the employer has conducted an interview and determined that the applicant has been selected to fill the position.

After the initial employment application process ends, the employer may inquire into the applicant’s criminal record. Unlike some other jurisdictions, the employer is then free to make any decision regarding whether to hire the employee, unless the criminal history disclosed consists of the following:

1. An arrest or criminal accusation that did not result in a conviction (unless it is currently pending);
2. A conviction for a “disorderly persons offense” or conduct from another state which, if committed in New Jersey, would constitute a “disorderly persons offense” where the date of the sentence or release from prison, whichever is later, occurred more than five years prior to the date of application for employment;
3. A conviction of a crime, other than serious offenses as enumerated in the statute, where the date of the sentence or release from prison, whichever is later, occurred more than ten years prior to the date of application for employment.

An employer also may not take adverse employment actions against an applicant if the criminal record or relevant portion thereof has been expunged or erased through executive pardon. If the criminal history is of the nature described above, the employer is prohibited from taking adverse employment actions on that basis. If the criminal history is not of the nature described above, the employer is free to decline to hire the applicant on that basis. Obviously, New Jersey employers should still follow the EEOC’s Guidance on the use of criminal history information, previously reported here, as well as any other applicable state or local laws or regulations.

The New Jersey law also makes it unlawful to advertise for a position where the advertisement provides that the employer will not consider any applicant who has been arrested or convicted. The law does not apply to any advertisement that solicits applicants for a position 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.

An interesting additional provision of the law precludes local governments from enacting their own laws on the same subject matter and preempts any such laws that may already exist. Thus, as of March 1, 2015, the cities of Newark and Atlantic City “ban the box” laws will be preempted.

“Ban the box” legislation has become a national trend for legislatures at all levels (we have previously covered action taken by San Francisco and Washington, DC). As of the date of publication, there are 66 local jurisdictions that have adopted “ban the box” legislation, in addition to 13 states.