New Jersey Limits Inquiries Into Criminal Records

New Jersey amended the New Jersey Opportunity to Compete Act (originally passed in 2014) which is commonly knows as “ban the box.” The existing protection restricts employers with more than 15 employees from inquiring about criminal history during the initial phase of an employment application. It has been amended in December of 2017 to include expunged criminal records as part of the restriction.

While many employers already assumed the original restriction included expunged criminal records it was perceived as a loophole and thus the act was amended to include language specifically prohibiting doing so.

New Jersey Opportunity to Compete Act – Ban-The-Box

As criminal background checks have been more and more commonplace (some 90%+ of applicants undergo a background check) during early phases of the employment process. There are an estimated 65 million people in the United States for which a criminal background check creates a barrier to employment. Many of these people are willing and able to integrate with the workforce and reduce the burden on social programs.

While many employers still employ the use of a criminal background check at some stage of the hiring process the goal of the act was to provide a “foot in the door” for many applicants who would otherwise be immediately rejected. The applicants would be able to voluntarily disclose this information to employers with an explanation during the hiring process.

In addition it prohibits employers from posting online jobs with the caveat that they will not consider applicants with a prior criminal record.

Enforcing “Ban-The-Box”

The Act does not provide any private action to be taken against an employer who violates this law. There is a civil penalty that can be imposed by the New Jersey Labor and Workforce Division against an employer who had violated the Act which can be up to $1000 for a first violation, $5000 for the 2nd and up to $10,000 for subsequent violations.

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