September 28, 2020

Volume X, Number 272

September 28, 2020

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New Jersey Limits Use of Criminal History in Hiring Decisions

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.

The Opportunity to Compete Act prohibits employers from posting job advertisements that state they will not consider applicants with arrest records or criminal convictions.  The law also prohibits New Jersey employers from asking about criminal history in the initial stages of an application, however they can do so after the first interview has been conducted.  Notably, New Jersey’s law applies not only to employers in the public sector, but also to private employers in the state.

Laws like the one recently adopted in New Jersey do not prohibit employers fromever running background checks on their applicants – they simply limit employers from asking about criminal history during the initial stage of the application process.  Certain industries (such as nursing or elder care) require background checks to be run before applicants can be hired, but even in these situations in New Jersey questions regarding criminal history cannot be asked until after the initial employment application process is complete (or the applicant raises the issue earlier).

While New York does not have a similar law in effect, multistate employers need to stay aware of the changes to employment application laws in their various states of operation.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IV, Number 231


About this Author

Rachel J. Tischler, Labor and Employment Attorney, Sheppard Mullin Law Firm

Rachel Tischler is an associate in the Labor and Employment Practice Group in the firm's New York office.

Areas of Practice

Ms. Tischler’s practice includes a broad range of labor and employment matters, including wage and hour class action lawsuits and discrimination, wrongful termination, retaliation, and harassment lawsuits.  She also has experience in issues including international employment concerns, separation agreements and releases, wage and hour compliance, and personnel handbooks, with particular experience in...