In 2014, New Jersey’s Governor Chris Christie signed the Opportunity to Compete Act also known as Ban the Box law to assist individuals with criminal records reintegrate into the community by offering them a fair chance to apply to job positions. The law, which became effective March 1, 2015, prohibits employers from requiring prospective employees to complete an employment application that makes inquiries regarding their criminal record during the initial employment process. That is, employers cannot ask prospective employees to disclose whether he or she has a criminal history until after the first interview. Employers are also prohibited from making an oral or written inquiry during the initial employment application process regarding an applicant’s criminal record. The Act, however, does not apply to positions sought in law enforcement, homeland security or emergency management, corrections, and where a criminal background check is required by law, rule or regulation.
Shortly after the Act went into effect, a draft rule proposal was submitted by the Department of Labor and Workforce Development. The proposal’s purpose was to help clarify the new Act. The final regulations, which clarify the following, became effective December 7, 2015:
- Any employer with at least 15 employees that does business, employs individuals, or takes employment applications in the state are covered by the Opportunity to Compete Act.
- Employers may use a common application for hiring in multiple states that includes criminal history inquiry, as long as the application includes a statement that applicants in New Jersey do not need to answer the criminal history question.
- Employers may not conduct an Internet search regarding an applicant’s criminal record prior to their first interview.
- Companies that use temporary help service are not restricted from inquiring about the criminal record of persons assigned to work at the client company’s site. However, a company that uses a job placement firm to recruit applicants is restricted from inquiring about the applicant’s criminal record. The Act would apply to these companies as these are considered employers.
To stay compliant, New Jersey employers need to review the final regulations and revise their employment applications and any job advertisements that request criminal history information. Penalties for noncompliance include $1000 for the first violation, $5000 for the second violation, and $10,000 for subsequent violations.