August 20, 2014 at 7:20 AM
A new bill soon will prohibit New Jersey-based companies with 15 or more employees from inquiring into the criminal backgrounds of job applicants until after the first interview. The Opportunity to Compete Act became law this month but does not go into effect until March 1, 2015.
This means you may not require an applicant to check “yes” or “no” to the question, “Have you ever been convicted of a crime?” on your employment application before concluding the first job interview. Nor may you verbally ask this question before or during the first interview.
You also may not run ads stating that anyone with a criminal history need not apply. However, if a candidate voluntarily discloses a criminal record during the initial application process, you may inquire further at that time.
After you complete the first interview, the applicant’s criminal record is fair game. However, questions remain as to what constitutes a “job interview.”
Exceptions to the Act include independent contractors, domestic workers in the home, positions in law enforcement, corrections, the judiciary, homeland security and emergency management, or where a criminal background check is required by law.
Currently, Newark employers with five or more employees may not conduct criminal background checks until a conditional job offer has been made, and then only if there has been a “good faith determination” that criminal history is relevant to the position, the employer has provided the candidate with advance written notice of the background check, and the candidate has agreed to it in writing. The last three requirements also are mandated by the Equal Employment Opportunity Commission’s guidance on criminal background checks and the Fair Credit Reporting Act.
Both the Newark ban-the-box ordinance and the EEOC guidance also restrict the types of offenses an employer may inquire about and require that certain factors be considered when evaluating the results of a permissible criminal background check. Like the FCRA, the Newark ordinance requires employers to provide candidates who are not hired with a form stating the reason for rejection and an opportunity to respond. The Opportunity to Compete Act preempts the Newark ordinance, but not the FCRA or federal courts that follow the EEOC guidance.
Penalties under the Opportunity to Compete Act are $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. There is no private right of action under the bill, which means job applicants cannot sue prospective employers for violations.
Philadelphia and the state of Delaware are among the 64 states, counties and cities that have passed similar ban-the-box legislation.
Alix R. Rubin, Esq. founded Rubin Employment Law in 2010 to fill the need for compassionate legal counsel for both employers and employees. The goal of the firm, which is located in Pine Brook, is to help its clients resolve their disputes cost effectively and with as little disruption to their businesses, and lives, as possible.
Alix’s strength is in creative and persuasive writing. She graduated magna cum laude with a B.A. degree in English and French from Tufts University and then earned a Master of Journalism degree from Temple University. She honed her listening, interviewing and writing skills as a public relations practitioner and journalist before earning a J.D. degree from the University of Pennsylvania Law School in 1996. Alix is admitted to the bar in New Jersey, New York and Pennsylvania.
Before starting her own firm, Alix was a litigation associate at two major New Jersey firms and a partner at the New Jersey office of a small New York firm. She also is an investigator at Verita LLC, where she conducts internal workplace investigations of employee misconduct, and is of counsel to Clark Guldin in Montclair. Alix currently serves on the Board of Trustees of Volunteer Lawyers for Justice and as a director of the Wharton Alumni Club of New Jersey.
She can be reached at firstname.lastname@example.org or 973.787.8442.
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