In February 2013, identical bills aimed at reducing pre-employment discrimination against individuals with criminal histories were introduced in the New Jersey Senate and the New Jersey Assembly (S2586 and A3837). Both bills proposed the adoption of the Opportunity to Compete Act (the “Act”) which would impose multiple restrictions and requirements on employers in connection with seeking criminal background information from prospective employees. If the Act is adopted, New Jersey will join a growing list of states, cities, and localities which have passed similar anti-discrimination legislation.
As set forth in the proposed bills, the Act discourages discriminatory conduct throughout the application process, beginning with imposing restrictions on the language employers can use in job postings and advertisements, and concluding with requiring employers to fill out, make available, and maintain records of various forms explaining the rationale behind any consideration the employer made of an applicant’s criminal history. In addition, the Act would prohibit employers from including check boxes on job applications which ask prospective employees to answer whether or not they have any criminal history. Similar prohibitions on application check boxes, known as “ban the box” provisions, have already been adopted in other states, including Massachusetts and Hawaii.
Under the Act, employers would be required to provide a written Notice of Rights to candidates prior to conducting any criminal background checks. These notices would detail candidates’ rights under the Act, as well as what employers would and would not be permitted to consider in making employment determinations. Further, if an employer takes adverse employment action against a candidate after conducting a criminal background check, the Act would require the employer to provide the candidate a written Applicant Criminal Record Consideration Form which would detail what criminal background information was provided to the employer and how the employer took it into consideration in making any adverse determination. Once this information has been provided, the candidate would then be given ten business days to respond. Employers would not be required to wait for a response from the candidate before filling the open position, but they would be required to review any additional information received from the candidate and provide the candidate with another Applicant Criminal Record Consideration Form detailing their decision in the event they maintain the adverse employment decision.
Notably, employers would still be permitted under the Act to ask about certain parts of an applicant’s criminal history once a provisional offer of employment has been made. Further, although the Act does not prohibit employers from considering serious violent crimes, various other levels of criminal history would be permitted to be considered by employers only within certain post-sentencing time frames. However, the Act would preclude employers from considering arrest records, unless the arrests are still pending.
Persons covered under the Act would include candidates for jobs with employers who have five or more employees. Also covered would be candidates for unpaid work averaging fifteen or more hours per week. Although the Act addresses employers who do business, employ persons, or take applications for employment within New Jersey, in order to be covered by the Act, a substantial part of the prospective employment would also be required to physically take place within the state. Finally, violations of the provisions of the Act would result in civil penalties which increase gradually based on the size of the employer, as well as based on the number of violations.
Both bills have moved into their respective Labor Committees and must pass standard bureaucratic hurdles before being enacted. If either bill is passed and the Act is ultimately adopted, the new prohibitions relating to criminal history inquiries could require significant changes to the application process for many New Jersey employers, including revisions to employment applications, job postings, and advertisements. As a result, we will continue to monitor the progress of these bills and keep you apprised of any developments.
*Rachel Tischler is a law school intern currently attending Brooklyn Law School.