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Employers Beware: New Jersey Implements New Law Governing Criminal Background Checks For Job Candidates Effective March 15, 2015

On August 11, 2014, Governor Chris Christie signed into law the New Jersey Opportunity to Compete Act, A-1999/S-2124 (commonly referred to as the “Ban the Box Law”), which sets forth new requirements governing criminal background checks by prospective employers for job candidates.

Effective March 15, 2015, the law applies to all New Jersey employers with 15 or more employees.  The law prohibits employers from inquiring about a job applicant’s criminal recorduntil after the employer has conducted an initial interview of the applicant. According to the law, it will be illegal for employers to ask applicants whether they have been convicted of a crime on a job application, advertisement or during an initial interview, whether or not the interview is conducted in person or on other platforms such as by telephone or video conference.  After the initial interview, however, the law permits the employer to make any inquiries into the candidate’s criminal history.  The law also provides that an employer cannot refuse to hire an applicant based upon a criminal record that has been expunged or pardoned.

While the law appears to be a victory for some job candidates as it removes criminal history as an element that an employer may consider at the initial stage of the hiring process in most cases, the law contains some important exceptions and protections for employers.  Most notably, the law does not prohibit employers from inquiring about a candidate’s criminal history on a job application or during an initial interview if the position sought is for certain safety sensitive positions including law enforcement, corrections, the judiciary, homeland security, or emergency management positions. The law also does not apply when a criminal background check is required by a certain law or regulation that requires such checks for the job position.

Applicants who believe a prospective employer violated the law cannot bring a civil claim against the employer.  Rather, the law makes it clear that civil penalties enforced by the New Jersey Department of Labor, Commissioner of Labor and Workforce Development are the exclusive form of remedy for violations of the statute.  These penalties include $1,000 for a first violation, $5,000 for the second violation and $10,000 for each subsequent violation.

New Jersey employers should conduct a review of their hiring procedures and more particularly, their job applications to ensure that any boxes or spaces requesting criminal history information is removed so as to comply with this new law.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume IV, Number 226

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About this Author

Jay S. Becker, Giordano Law Firm, Labor & Employment, Cannabis Law, Corporate Labor Relations Employment Law and Litigation
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Jay, chair of the Labor and Employment Practice Area, devotes his practice to labor relations and employment law and litigation on behalf of management. His experience includes conducting trials, hearings, arbitration and mediation sessions; responding to state and federal administrative agency charges; collective bargaining; drafting employment-related corporate documents such as restrictive covenants, employee handbooks, employment agreements, various stock and compensation plans, and separation/severance agreements. He counsels employers on all employee relations issues including, but...

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