Background Investigations

As we reported in December 2013 (see here), New Jersey was on the road to joining 6 other states which have recently passed legislation banning or limiting the use of criminal background checks in the hiring process.  On August 11, 2014, New Jersey Governor Chris Christie signed the Opportunity to Compete Act, and New Jersey joined Connecticut, Illinois, Massachusetts, and Rhode Island, among a number of other states, cities, and municipalities, in prohibiting employers from asking about an applicant’s criminal history during the initial stage of the application process.  The New Jersey legislature had passed the measure in June.
Continue Reading UPDATE: New Jersey Limits Use of Criminal History in Hiring Decisions

This past Monday, July 21, 2014, Illinois joined Hawaii, Massachusetts, Minnesota and Rhode Island as the fifth State to enact a so called “ban the box” law.  Signed by the Governor, the law will take effect on January 1, 2015.  Called the Job Opportunities for Qualified Applicants Act, the law prohibits private sector employers from asking about a job applicant’s criminal record or history until after the employer has scheduled an interview.  If the hiring decision is made without interview, then the employer cannot ask until after it has made a conditional offer of employment.  The law applies to all private sector employers with 15 or more employees.  Exceptions to this new law include: (1) jobs which cannot be held by convicted criminals under federal or state law, (2) jobs requiring licensing under the Emergency Medical Services System Act, and (3) a limited exception for jobs requiring fidelity bonds.
Continue Reading Illinois Becomes The Fifth State To Enact So Called “Ban The Box” Law, Prohibiting Private Sector Employers From Asking About Criminal History

The Equal Employment Opportunity Commission (“EEOC”) recently announced new guidelines that may impact the way employers conduct background checks and accommodate religious dress and grooming practices.
Continue Reading New EEOC Guidelines Regarding Employers’ Obligations With Respect to Background Checks and Accommodation of Religious Dress and Grooming Practices

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.
Continue Reading New Jersey Looks to Limit Use of Criminal History in Hiring Decisions

An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace violence, and face liability for negligent hiring and retention of employees who commit violence in the workplace. Furthermore, a job applicant’s honesty and judgment are relevant factors to consider in assessing an applicant’s suitability for a job. For these reasons, employers frequently feel the need to inquire about an applicant’s criminal conviction history and use criminal background checks when making hiring decisions. However, a recent increase in laws banning, or significantly limiting, an employer’s ability to inquire about an applicant’s criminal history, requires that all employers examine their current criminal background check policies and practices to ensure compliance with applicable laws.
Continue Reading Is Your Criminal Screening Process Compliant?

On April 11, 2013, the New York City Council’s Committee on Civil Rights debated a proposed bill that would ban employers from using credit checks to evaluate prospective employees. The proposed bill, called the Stop Credit Discrimination in Employment Act (the “SCDEA” and available here), would create a blanket ban on using credit information for hiring purposes, with a narrow exception only where employers are required to use such information by state or federal law.
Continue Reading Proposed New York City Bill Would Ban Credit Checks from Hiring Process

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.
Continue Reading N.J. Legislature Introduces Legislation Imposing Restrictions on Pre-Employment Inquiries into Criminal History of Applicants

On April 25, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance on employers’ use of arrest and conviction records when making employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC’s guidance (the “Guidance”) is intended to codify and build on its prior policies concerning employers’ use of criminal records. Nevertheless, the Guidance, which is effective immediately, supersedes the EEOC’s prior policies on this issue.
Continue Reading The EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction Records

The job market appears to be on an upswing, and with this upswing, and the advent of new technology, comes new challenges for employers and applicants alike. Potential employees may have online identities that many employers deem useful when investigating a job applicant. However, privacy settings on many social media sites allow an applicant to hide his/her online persona from these potential employers. As a result, a new trend in applicant background investigating has surfaced: asking an applicant for his/her username and password to social media sites during the interview process.
Continue Reading Password Protected – Proposed Social Media Privacy Legislation

By Michelle Sherman

Agatha Christie had a novel take on invention being the mother of necessity. She disagreed and said, “[I]nvention, in my opinion, arises directly from idleness, possibly also from laziness. To save oneself trouble.” She may have been onto something when you think about businesses that are turning to outside vendors to research employees and job candidates for them. Whether or not these outside vendors are the best solution, however, remains to be seen.


Continue Reading Legal Issues Surrounding Social Media Background Checks