Yesterday afternoon, Governor Christie signed the Opportunity to Compete Act (“Act”), colloquially referred to as the “Ban the Box” law.
The Act will be effective March 1, 2015 and applies to employers with 15 or more employees.
The basic provisions prohibit covered employers from having any questions inquiring about an applicant’s criminal convictions on job applications and during the “initial employment application process.” This may sound strange but it simply means that employers also may not ask applicants about criminal convictions until after the first interview is completed. The initial interview does not have to be in person, however.
The law defines an applicant as any person inquiring about employment or a job vacancy and includes a current employee. That means that if a current employee is seeking a promotion or posting for a vacant position, the employer cannot ask about criminal convictions until after a first interview for the position. If an applicant voluntarily discloses information about a criminal history prior to the completion of the first interview, the employer is permitted to ask for details about the applicant’s criminal history.
Employers may still refuse to hire applicants who either refuse to consent to the criminal background check or who have certain criminal convictions. The law does not set forth specific time limits for how far back an employer can consider a conviction or which convictions may be considered, except that any records expunged or pardoned may never be considered by the employer.
The good news for Newark employers is that this law preempt the Newark Ban the Box Ordinance, which has much more onerous requirements for employers who use criminal convictions in deciding not to hire certain individuals. Once this law is in effect, Newark employers will no longer have to provide to applicants formal documentation of the consideration given to certain factors nor provide an appeal process. All employers should, however, continue to make sure that they are using the EEOC’s Enforcement Guidance for the use of criminal background checks to determine if a conviction is job-disqualifying.
The law explicitly states that there is no private cause of action, but enforcement is solely by the Division of Labor and Workforce Development. The law also provides for civil penalties of up to $10,000 per violation.