As of March 1, 2015, and according to the New Jersey Opportunity to Compete Act, New Jersey employers with 15 or more employees – both public and private companies – will be prohibited from inquiring into a job applicant’s criminal history on initial interviews and employment applications. However, employers can ask about an applicant’s criminal history AFTER the initial interview.
Exceptions to the law include:
- Employment positions in law enforcement, corrections, the judiciary, homeland security, emergency management, or other positions where a criminal history background check is required by law, rule or regulation.
- When the applicant is legally precluded from holding the position based on an arrest or conviction of certain crimes.
- If the employer is legally restricted from engaging in specified business activities based on its employees’ criminal records.
- Any positions specifically designated by the employer as part of a systematic effort to encourage hiring people with prior criminal histories.
It should be noted that nothing in the New Jersey Opportunity to Compete Act requires employers to hire applicants with criminal records. However, in order to ensure full compliance with the New Jersey law and federal laws, employers should assess the position and the crime before disqualifying the candidate. Things to consider are:
- The nature and gravity of the offense;
- The amount of time that has passed since the offense and completion of the sentence;
- The circumstances surrounding the offense;
- Rehabilitation efforts; and
- The nature of the position sought.
Civil penalties for violations include a fine of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. The enforcement agency is the Commissioner of Labor and Workforce Development.
What does this mean for employers? If you are doing business in the State of New Jersey, you should review your hiring and background screening processes for compliance, and remove any inquiries into the job applicant’s criminal history from your initial interview process and your employment applications.