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On March 1, 2015, New Jersey’s “Opportunity to Compete Act,” also known as the “Ban the Box” Act, will take effect.  “Ban the Box” prohibits certain employer inquiries regarding a job applicant’s criminal record, including inquiries on most employment applications.  Therefore, employers seeking to fill jobs in New Jersey, either internally or externally, need to ensure that they understand and comply with the requirements of “Ban the Box.”

“Ban the Box” is intended to improve employment opportunities for persons with criminal records.  The Act applies to all employers (except the federal government) which have 15 or more employees over 20 calendar weeks, and which do business, employ persons, or take job applications within New Jersey.  While it is not entirely clear, the phrasing of the Act suggests that even employees outside of New Jersey will be counted toward the 15 employee minimum.

The Act generally prohibits covered employers from making any oral or written inquiries during the “initial employment application process” regarding an applicant’s “criminal record,” including inquiries on a form employment application.  “Criminal record” is broadly defined, and includes information such as arrests, indictments, charges, pleas, convictions, acquittals, sentences, and the like.  The Act also generally prohibits covered employers from running job advertisements stating that applicants who have been arrested or convicted of a crime or offense will not be considered for employment.  These prohibitions apply only where the prospective employment will be physically located, “in whole, or in substantial part,” in New Jersey.  Note, however, that other states and localities have similar laws addressing the consideration of criminal history for employment purposes in those jurisdictions.

The Act does not prohibit all pre-employment inquiries regarding criminal records.  The Act permits covered employers to make inquiries about an applicant’s criminal record, including through an employment application form, after the conclusion of the “initial employment application process” – that is, after the conclusion of a “first interview” of the applicant conducted by the employer either “in person or by any other means . . . .”   The Act also permits employer inquiries regarding an applicant’s criminal record, even during the “initial employment application process,” if the applicant volunteers any information regarding his or her criminal record.

Notably, the Act does not preclude employers from refusing to hire an applicant based upon a criminal record, unless the record has been “expunged or erased through executive pardon . . . .” However, the refusal must be consistent with other laws, rules and regulations, such as the federal Fair Credit Report Act, and federal and state discrimination laws (including the EEOC’s guidelines regarding the consideration of criminal history during the selection process).

The Act broadly defines “applicant” to mean anyone the employer is considering through any means for a position, and includes current employees.

The Act contains some limited exceptions.  The prohibitions relating to advertisements and criminal records inquiries, including inquiries on a form employment application, do not apply where employees are sought for positions:

• “in law enforcement, corrections, the judiciary, homeland security, or emergency management”;
• “where a criminal history record background check is required by law, rule or regulation”;
• where an arrest or conviction would preclude the applicant from holding the position pursuant to law, rule or regulation; or
• “where any law, rule, or regulation restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees.”

Inquiries also may be made prior to the completion of a first interview (including inquiries on a form employment application) of applicants for positions “designated by the employer to be part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons who have been arrested or convicted of one or more crimes or offenses.”

Employers who violate the Act may be subject to penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

Employers covered by the Act should review their employment application forms, as well as advertisements and postings for open positions in New Jersey, to ensure that these forms, advertisements and postings comply with the “Ban the Box” requirements.  In addition, covered employers should review their hiring and recruitment policies and practices, and consider training those involving in the hiring process, to avoid any impermissible inquiries regarding criminal records during the initial employment application period.