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New Jersey’s Opportunity to Compete Act (also known informally as the New Jersey “ban the box” law), N.J.S.A. 34:6B-11 et seq., goes into effect on March 1, 2015. The new law restricts most employers’ ability to request criminal history information from job applicants. Employers covered by the new law will need to adjust their hiring practices accordingly. Below are some frequently asked questions about the new law. These FAQs are not legal advice. Be sure to consult with legal counsel if you have any questions about the new law.
Q: Does the law prohibit an employer from ever asking about an applicant’s criminal record?
A: No. The law simply restricts when in the hiring process an employer may inquire about an applicant’s criminal record.
Q: When can an employer inquire about an applicant’s criminal record?
A: Unless one of the limited exceptions applies, an employer cannot make any inquiry—either verbally or in writing, including in an employment application—about an applicant’s criminal record during the “initial employment application process” (IEAP). [NJSA 34:6B-14a]. Once the IEAP is complete, an employer can make inquiries about an applicant’s criminal history. [NJSA 34:6B-14c].
Q: What is the IEAP and when is it “complete”?
A: The IEAP is the period beginning when an applicant first makes inquiry to an employer about prospective employment (or when the employer first makes inquiry to an applicant about prospective employment) and ending when an employer has conducted a first interview with the applicant. [NJSA 34:6B-13]. In effect, an employer cannot make any inquiry about an applicant’s criminal record until after it has conducted a first interview with the applicant.
Q: What qualifies as a “first interview” that will satisfy the IEAP requirement?
A: The law is not very specific in this regard. The law states that an interview may be conducted “in person or by any other means.” [NJSA 34:6B-13]. This suggests that an interview can also be conducted telephonically or through online means, such as Skype, instant message, or other web-based service. Less clear is whether the “interview” must involve some type of “real time” dialogue between the applicant and the employer (such as through the foregoing methods) or whether an employer could conduct a “first interview” through a non-interactive process, such as written questions that an applicant would answer in writing and submit to the employer.
Also the law does not address how detailed or lengthy the “first interview” needs to be. It is thus unclear whether the employer must conduct a detailed interview or whether, for example, the employer could simply obtain very basic information about the applicant, such as prior employment and educational history. The spirit of the law, as discussed below, suggests that the employer’s “first interview” should be detailed enough that the employer obtains sufficient information to determine that the applicant is at least minimally qualified for the position and that a perfunctory interview would not suffice.
Q: Does the law require an employer to engage in some deliberative process after the “first interview” but before asking about an applicant’s criminal record?
A: Again, the law is not clear on this point. The intent of the law is to give persons with a criminal record a genuine opportunity to compete for employment. Thus, the spirit of the law would seem to require than an employer adopt a process whereby a threshold determination is made that an applicant possesses at least the minimum qualifications for the position and is a potentially viable candidate before the employer makes an inquiry about the applicant’s criminal record. On the other hand, the law does not require that the employer wait to make an inquiry until after a conditional offer of employment is made. The law seems to contemplate a middle ground whereby the employer engages in at least a basic screening process designed to exclude non-qualified applicants before asking for criminal record information.
Q: Is it possible for an employer to complete the “first interview” and ask an applicant about his or her criminal record all in one visit?
A: As noted, the spirit of the law seems to require that the employer engage in some deliberative process and make a screening decision before making a criminal record inquiry. However, that does not mean that an employer could never interview an applicant, conduct a bona fide screening process while the applicant is still on site, and then ask the applicant about his or her criminal record during the same visit. For example, if the employer completes the interview, takes a break to further reflect on the applicant’s credentials and/or to speak to others involved in the hiring decision, and then concludes in good faith that the applicant meets the minimum qualifications, the law does not appear to preclude an employer from then legitimately inquiring about the applicant’s criminal record. However, it would seem to defeat the purpose of the law and likely be impermissible to engage in a perfunctory evaluation of the applicant’s credentials simply for the expediency of conducting the first interview and the criminal inquiry in one session.
Q: What if an applicant voluntarily discloses information about his or her criminal record during the IEAP?
A: In that case, the employer may make inquiries about the applicant’s criminal record during the IEAP. [NJSA 34:6B-14b].
Q: Are there exceptions when an employer may inquire about an applicant’s criminal record during the IEAP?
A: Yes, there are several. An employer may inquire about an applicant’s criminal record during the IEAP when the applicant is seeking a position in law enforcement, corrections, the judiciary, homeland security, or emergency management. [NJSA 34:6B-16a]. Also when the applicant is seeking a position for which a criminal record check is required by law, or when an arrest or conviction may preclude the person from holding the position by law, or when a law restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees. [NJSA 34:6B-16b]. Also when the applicant is seeking a position designated by the employer as part of a program designed to encourage the employment of persons who have a criminal record. [NJSA 34:6B-16c].
Q: Can an employer use a third party to make a criminal record inquiry before the IEAP is complete, for example, by using a private investigator, background check company, or online database?
A: No. Unless one of the limited exceptions applies, an employer cannot make any inquiry, directly or indirectly, about an applicant’s criminal history until the IEAP is complete. (And as a reminder, an employer must comply with the federal Fair Credit Reporting Act and its state counterparts before using a third-party company to conduct any background check, including a criminal record check).
Q: Does the law restrict an employer’s ability to use an applicant’s criminal history once it is properly obtained?
A: No, unless the applicant’s criminal record has been “expunged or erased through executive pardon.” In all other cases, the law simply provides that the employer’s refusal to hire an applicant based on a criminal record must be “consistent with other applicable law, rules and regulations.” [NJSA 34:6B-14c]. The law thus imposes no obligation on an employer to consider particular factors before rejecting an applicant based on his or her criminal record (in comparison to other states, such as New York). However, as noted, an employer’s decision to reject an applicant must be consistent with “other applicable law,” which includes the EEOC’s guidelines on rejecting applicants based on criminal history, the federal Fair Credit Reporting Act, and similar state laws.
Q: Does the law only apply to positions that are to be based in New Jersey?
A: For the most part, yes. The law requires that “the physical location of the prospective employment shall be in whole, or in substantial part, within this State.” Positions that are not based in New Jersey, or only involve insubstantial presence in New Jersey, are not subject to the law’s restrictions on seeking criminal record information. [NJSA 34:6B-13].
Q: Which employers are covered by the law?
A: Only employers with 15 or more employees are covered by the law; employers with fewer than 15 employees are not covered. For purposes of calculating the number of employees, persons employed in domestic service, independent contractors, and directors and trustees are not included, but interns and apprentices are included. [NJSA 34:6B-13].
Q: Does an employer have to employ at least 15 employees in New Jersey to be covered?
A: The law does not specifically require that an employer actually employ any employees in New Jersey to be covered. As written, the law applies to employers with 15 or more employees (apparently anywhere) that either (1) do business, (2) employ persons, or (3) take applications for employment in New Jersey. If an employer with at least 15 employees (anywhere) does any one of these three things it is subject to the law—but only with respect to positions that are based in whole or substantial part in New Jersey.
Q: Does the law apply to current employees who are seeking or being considered for a different position with their same employer?
A: Yes. An “applicant” includes a current employee. [NJSA 34:6B-13]. Thus, the restrictions on criminal record inquiries apply equally to existing employees who are seeking a promotion or other new position with an employer.
Q: How does the law impact criminal record inquiries when an employer uses a staffing company?
A: The law defines a covered employer as including job placement and referral agencies and other employment agencies. [NJSA 34:6B-13]. Although the law is not entirely clear, it appears that a staffing firm must conduct its own interview with an applicant before it can inquire about an applicant’s criminal record. But it does not appear that a staffing company must wait to make a criminal record inquiry until after the staffing company’s client has interviewed the applicant. In other words, it appears that staffing companies are permitted to prescreen applicants, including making criminal record inquiries, before presenting an applicant to a client for consideration.
Q: Does the law restrict the content of job advertisements as well?
A: Yes. An employer cannot state in any advertisement that it will not consider an applicant who has been arrested or convicted. An exception exists if the advertisement is for a position as to which the employer can inquire about an applicant’s criminal record during the IEAP, as noted above (such as a position in law enforcement, a positon in which a criminal record check is required by law, etc.)
Q: What is the effective date of the law?
A: March 1, 2015.
Q: What impact does the state law have on local “ban the box” laws, such as Newark’s expansive ban the box law that took effect in November 2012?
A: The law contains an “express preemption” provision, which states that any existing local laws or ordinances that govern criminal history inquiries in connection with employment are preempted and thus no longer enforceable. Likewise, the law prohibits local governments from enacting any such laws in the future. [NJSA 34:6B-17]. This provision will prevent employers from having to comply with different criminal history laws in different parts of the state and instead ensures that all employers in New Jersey will be subject to a uniform state law on the issue. There is one exception to the “preemption” rule for local ordinances adopted “to regulate municipal operations.” This exception appears to permit local governments to enact more restrictive criminal history inquiry laws with respect to applicants for local government employment. Also, it remains to be seen whether advocates of more restrictive ban-the-box laws, such as the Newark law, will challenge the preemption provision.
Q: What are the penalties for violating the law?
A: The law provides that an employer is subject to civil penalties for each violation in the amount of $1,000 (for the first violation), $5,000 (for the second violation), and $10,000 (for subsequent violations) that can be collected in an enforcement action by New Jersey’s Department of Labor and Workforce Development (NJDOL). [NJSA 34:6B-19].
Q: Can an employer be sued in court for violating the law, such as by an applicant who alleges that he or she was not hired based on an improper criminal record inquiry?
A: The law contains a strongly worded exclusive remedy provision, which provides that the civil penalties described above are the sole remedies for violations of the law and that the law does not create a private cause of action for alleged violations. [NJSA 34:6B-18]. Nonetheless, legal claims for violations of the law premised on other employee protection laws, such as the Conscientious Employee Protection Act, may be attempted. Whether courts will recognize such claims in light of the broad exclusive remedy provision is unknown.
Q: Will the NJDOL enact any regulations to clarify any uncertain terms of the law?
A: Possibly. The law provides that the NJDOL “may take anticipatory administrative action” for implementation of the law in advance of the law’s effective date but no proposed regulations have yet been issued.
Q: Does the law require employers to post or distribute any notices that describe the protections of the law?
Q: What steps should employers take to comply with the law?
A: At a minimum, employers should:
*Remove any questions from paper or online employment applications that inquire about an applicant’s criminal record (unless the position being filled is one of the excepted positions) when such application forms are completed prior to a first interview with an applicant.
*Ensure that job advertisements do not state that the employer will not consider an applicant who has been arrested or convicted (unless the position is one of the excepted positions).
*Instruct all persons responsible for interviewing applicants not to make any inquiry about an applicant’s criminal record during a first interview with an applicant.
*If collection of criminal record information is desired, adopt a process that requires screening of applicants after a first interview is conducted to determine if, based on the non-criminal record information gathered, the applicant meets the minimal qualifications for the position and appears to be a potentially viable candidate. Then, as to those applicants who pass the screening process, criminal history information can be requested from the applicant directly in writing or through a third party background check (which, as noted above, must be done in compliance with the federal Fair Credit Reporting Acts and similar state laws).
Mark Diana is a shareholder in the Morristown office of Ogletree Deakins. Republished with permission. © 2014 Ogletree Deakins. All rights reserved.
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