On Monday, December 16th, the New Jersey Assembly Labor Committee advanced the Opportunity to Compete Act, a new bill that would prohibit New Jersey employers from inquiring about criminal history on a job application or conducting a criminal background check before a conditional offer of employment is made.
If passed, the bill would make New Jersey the latest jurisdiction to restrict an employer’s ability to inquire into an applicant’s criminal record. While ten states – California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico, and Rhode Island – and a host of municipalities already have “ban the box” laws in place, the New Jersey Opportunity to Compete Act goes much further than most. In addition to the restrictions noted above, the bill would require an employer to obtain an applicant’s written consent to conduct a background check (although an offer could be rescinded if consent were withheld) and limit what types of offenses an employer could consider in making hiring decisions. Further, if an employer wished to rescind a conditional offer based on an applicant’s criminal history, it would be required to provide the applicant with an official Criminal Record Consideration Form outlining its decision. The applicant would then be entitled to submit a response, to which the employer would be required to reply with a final decision.
While the proposed law contains many restrictions, it would not apply to employers with less than 15 employees and, significantly, would not grant aggrieved job applicants a private right of action. Rather, the law would be enforced by the New Jersey Division of Civil Rights, with penalties ranging from $500 to $7,500 per violation.
New Jersey employers should be sure to check the Sheppard Mullin Labor & Employment Law Blog regularly for updates on the status of the Opportunity to Compete Act. Further, even employers without operations in “ban the box” states should exercise care in their consideration of a job applicant’s criminal record. The EEOC has recently taken a very public stance against the use of criminal history in hiring decisions and many states, like New York, prohibit an employer from refusing to hire an applicant based on a criminal conviction absent a strong nexus between that conviction and the applicant’s qualifications for the job. For more information on the use of criminal records in employment decisions, see the “Background Investigations” topic on the Blog.