October 31, 2020

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

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.

If passed, the bill would make New Jersey the latest jurisdiction to restrict an employer’s ability to inquire into an applicant’s criminal record.  While ten states – California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico, and Rhode Island – and a host of municipalities already have “ban the box” laws in place, the New Jersey Opportunity to Compete Act goes much further than most.  In addition to the restrictions noted above, the bill would require an employer to obtain an applicant’s written consent to conduct a background check (although an offer could be rescinded if consent were withheld) and limit what types of offenses an employer could consider in making hiring decisions.  Further, if an employer wished to rescind a conditional offer based on an applicant’s criminal history, it would be required to provide the applicant with an official Criminal Record Consideration Form outlining its decision.  The applicant would then be entitled to submit a response, to which the employer would be required to reply with a final decision.

While the proposed law contains many restrictions, it would not apply to employers with less than 15 employees and, significantly, would not grant aggrieved job applicants a private right of action.  Rather, the law would be enforced by the New Jersey Division of Civil Rights, with penalties ranging from $500 to $7,500 per violation.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume III, Number 356
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About this Author

Adam Pekor, Labor, Employment, Lawyer, Sheppard Mullin
Attorney

Adam Pekor is an attorney in Labor & Employment Practice Group in the firm's New York office. Mr. Pekor counsels both for-profit and not-for-profit clients on a wide range of labor and employment matters, including employee hiring and disciplinary procedures, disability accommodation issues, restrictive covenants, worker classification issues, leaves of absence, wage and hour compliance, and employee severance and termination procedures.  Mr. Pekor has significant experience drafting all types of employment agreements and...

212-634-3099
Eric Raphan, Labor and Employment Legal Specialist, Sheppard Mullin
Associate

Mr. Raphan is a partner in the firm's Labor and Employment practice group and is located in our New York Office.  

Areas of Practice

Mr. Raphan's practice encompasses a wide range of labor and employment matters, including the defense of single plaintiff and class action discrimination, wrongful discharge and wage/hour claims, in addition to employment contract, restrictive covenant, whistleblower, sexual harassment and related claims. He regularly represents clients in labor and employment litigations in federal and state courts, and in proceedings before...

212-634-3045
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