New Jersey could become the latest state to “ban the box.” The term refers to efforts to remove barriers to employment for individuals with criminal records, often by restricting the use of criminal background checks by employers.
As we have previously discussed on this Business Law Blog, the city of Newark has already implemented such measures. An ordinance, which took effect in November 2012, specifically prohibits an employer from conducting a criminal history inquiry during the application process. Six states—Hawaii, California, Connecticut, Massachusetts, Minnesota and New Mexico—have adopted similar restrictions.
Under the “New Jersey Opportunity to Compete Act," employers could not inquire about an applicant’s criminal history until after the applicant has been found otherwise qualified and a conditional offer of employment has been made. It would thereby “ban the box” by eliminating the check box on many employment applications that requires applicants to disclose whether they have a criminal conviction in their background.
It is important to note, however, that the legislation would not completely ban New Jersey employers from inquiring about an applicant’s criminal history. The following may be considered during hiring decisions: indictable offense convictions for ten years following the release from custody or end of sentencing; disorderly person convictions and municipal ordinance violations for five years following the release from custody or end of sentencing; and any pending criminal charges. In addition, the bill would not restrict an employer from considering criminal records occurring within any timeframe that involve serious violent crimes including murder, attempted-murder, arson, sex offenses requiring registry and acts of terrorism.
Lastly, the bill provides a mechanism through which applicants may challenge hiring decisions. After receiving notice that the conditional employment offer has been withdrawn, applicants will have 10 business days to challenge the accuracy of the criminal history and present additional evidence of rehabilitation or other factors for the employer to consider. If the employer has yet to fill the position, they will be required to consider the additional information.
If you have any questions about the proposed legislation or would like to discuss how it may impact your business, please contact me, Christina Michelson, or the Scarinci Hollenbeck attorney with whom you work.