INTRODUCTION

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act”, which took effect on January 1st of this year. Many refer to it as the “Ban the Box” law, which, under circumstances described below, prohibits employers from looking into a job applicant’s criminal record — until after the first stage of the application process. The Legislature believed prospective employers should at least be given a chance to “fall in love” with the job applicant, whereas applicants who have to explain, justify, and defend their criminal record right from jump will never get another glance.

The New Opportunity to Compete Act (Ban the Box)

Ban the box calls on New Jersey employers to create a fair opportunity for ex-offenders to fairly compete and apply for jobs by removing the tick box from application forms that asks about criminal convictions, which dooms most such applications early in the recruitment process.

When former offenders can’t work, can’t pay their bills, lose their self respect, many of them return to a life of crime. This public policy change is intended to mitigate that cycle of failure, to a degree.

New Jersey Criminal Record

New Jersey’s version of “ban the box” applies to all employers, public and private, which regularly employ 15 or more employees for over 20 calendar weeks per year. It stops covered employers from investigating information about a potential candidate’s criminal record until after initial hiring steps have been completed, as follows:

• The employer has conducted an interview with the job candidate;
• The employer has made a determination that the candidate is qualified for the position; and
• The employer has determined that the candidate may be their first choice to fill the position.

If, however, a potential candidate voluntarily discloses information about his or her criminal background during the initial job application process, then the employer may further inquire about it legally.

When May A New Jersey Employer Make a Lawful Inquiry into a Job Applicant’s Criminal Background?

New Jersey employers may make criminal background inquiries prior to making a formal offer.

However, even after the initial job application process ends, employers are still not allowed to inquire into:

• Expunged criminal records;
• Arrests that did not result in a conviction;
• Disorderly conduct or mischief convictions in which the date of sentence or the release from jail happened five years or more before the job application; and
• Conviction of crimes of the fourth degree in which the date of sentence or release from jail took place 10 years or more before the job application.

The law also limits employers from posting job positions stating that they will not consider potential candidates who have been arrested or charged and convicted of a crime, unless

• The described opportunity seeks candidates for one of the exempted positions, such as law enforcement or positions in corrections, courts, emergency management, or homeland security;
• When a criminal background check is required by law; or
• Having no criminal conviction or arrest could legally be a requirement for a job.

In addition, under the new law, and subject to the exempt positions mentioned above, covered employers are not allowed to publish any job advertisements stating they will not consider candidates who have been arrested or convicted of criminal offenses.

Employers Face Fines for Violating the Opportunity to Compete

While the “ban the box” law does not offer candidates a private cause of action or right to be instated into the missed job or its equivalent, employers who break the law are subject to a fine of $1,000 for a first violation, $,5000 for a second, and $10,000 for every violation after that.

Conclusion

Ban the Box is akin to civil rights legislation. It helps free people from the shackles of their past and gives them a shot at redemption and financial self sufficiency. It also helps break the cycle of recidivism, in which taxpayers continue to pay to feed, clothe, and house people who are not working. If not a leg up, Ban the Box represents at least a helping hand for those who desperately need it.

If you or someone you know has been adversely affected by an employment decision and you or they believe a legal opinion or advocacy would make a difference, then contact a law firm with long and deep experience in the employment law field, on behalf of workers. We will be happy to review the facts, analyze the law, and give you an opinion as to whether you have a claim worth pursuing. In appropriate cases, we will take your matter to court, seeking just compensation for an employer’s wrongdoing.

Please call or write to us. We will be happy to help you.