New Jersey: New Year, New Rules for Employers Doing Business
This past year New Jersey state and local legislatures implemented several employment laws that are set to take effect at the end of 2015 or in early 2016. This update summarizes these new legal requirements to help New Jersey employers prepare and comply in 2016.
The Opportunity to Compete Act
The most significant change to New Jersey labor and employment law could not wait until 2016. The New Jersey Opportunity to Compete Act (OTCA), which went into effect on December 8, 2015, aims to remove employment obstacles for individuals with criminal records by limiting employers’ ability to use criminal background checks in hiring decisions. As a result, New Jersey employers are now generally barred from inquiring about a prospective employee’s criminal history before a first interview. In enacting the OTCA, New Jersey joins Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island on the list of states observing so-called “ban the box” laws.
The OTCA applies to any employer with more than fifteen employees that does business, employs persons, or takes applications for employment in New Jersey for over twenty weeks per year, with the exception of state and local public agencies. Employers who accept applications from outside New Jersey, however, may inquire about criminal history on a multistate application so long as the application instructs New Jersey applicants to disregard the relevant question. Employers may also note that applicants may be subject to criminal background checks as a condition of employment. However, in no event may New Jersey employers state in a job application that applicants who have been arrested or convicted of a crime will not be considered.
After the employment application process has been completed, the OTCA precludes employers from inquiring about an applicant’s criminal history until after a first interview is conducted. However, immediately after a first interview or after a conditional job offer has been extended, employers are free to inquire about the applicant’s entire criminal record, and not just prior convictions that might serve as disqualifiers for employment.
Finally, the limitation on criminal history inquiries before an interview or offer do not apply where (1) an applicant voluntarily discloses a criminal record during the initial application process, (2) the applicant is being considered for a job in law enforcement, corrections, homeland security, the judiciary, emergency management, or other position where a background check is legally required, (3) the applicant could be legally prevented from holding the position because of a criminal record, or (4) a law, rule or regulation restricts the employer’s ability to engage in specified business activities based on its employees’ criminal records.
Jersey City and Elizabeth Paid Sick Leave Laws
This year, two New Jersey cities (Jersey City and Elizabeth) amended or enacted paid sick leave laws that will apply to employers doing business in those cities in 2016. Specifically, Jersey City strengthened its pre-existing paid sick leave law by expanding its reach. Under current law, employers with fewer than ten employees were not affected. However, starting in 2016, employers with less than ten employees will be required to provide employees with up to twenty-four hours of paid sick time per year, and, if that is exhausted, up to sixteen hours of unpaid sick leave per year. Employers with ten or more employees must provide up to forty hours of paid sick leave per year.
Voters in Elizabeth approved a new paid sick leave law effective March 2, 2016, becoming the tenth New Jersey municipality to do so. All employers in Elizabeth must provide employees with one hour of paid sick leave for every thirty hours of work, capped at twenty-four hours per year for employers with less than ten employees, and forty hours per year for employers with ten or more employees.
Given these new laws, employers in New Jersey should review their employment policies, hiring procedures, and paid sick leave allotments to ensure compliance with each of the legislative changes addressed above and implement any necessary changes by the effective date.