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NJ “Ban the Box” Law Restricts Employers from Inquiring about Criminal Records of Prospective Employees During Initial Application Process

On August 12, 2014 by Schnader in Labor and Employment

By Harris Neal Feldman

New Jersey Governor Chris Christie signed The Opportunity to Compete Act (A-1999) on August 11, 2014, barring private employers from asking prospective employees about their criminal records during the initial job application process – whether as a part of the employment application or by oral inquiry.

This law follows a trend among multiple jurisdictions in the United States to “ban the box” – meaning prohibiting employers from asking a prospective employee to check the box on an employment application as to whether the person has a criminal history. After the “initial” application process, which includes the first interview, the employer is free to inquire about an applicant’s criminal history. Thus, careful timing is key.

The law provides certain exceptions, such as jobs requiring high levels of security or where a criminal background check is otherwise required by law. Notably, should an applicant voluntarily disclose criminal record information during the initial application, then an employer may “make inquiries regarding the applicant’s criminal record during the initial employment application.”

Also, under this new law, employers will be prohibited from posting job advertisements that “explicitly provide that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses.”

While the law does not provide a private cause of action for violations, employers may face fines up to $1,000 for the first violation, $5,000 for the second, and $10,000 for subsequent violations. The law preempts any local/municipal laws that address criminal record inquiries in the employment context.

What Should NJ Employers Do?

With the new law’s effective date of March 1, 2015, employers have time for counsel to (1) review existing job advertisements, application forms, and related documents and (2) help train management who participate in the hiring process.

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