A bill was recently introduced in the New Jersey Senate that would significantly restrict an employer’s ability to ask about and consider a current or future employee’s criminal history in the employment process. Bill No. S.2586, also known as the Opportunity to Compete Act (OCA) or “Ban the Box” bill, would prohibit private and public New Jersey employers from directly or indirectly inquiring about a candidate’s criminal history until after a “conditional offer of employment” has been made. This would prevent employers from asking about criminal history on job applications, and would ban most pre-offer background checks (employers required or permitted by law to consider criminal histories in employment decisions may continue to do so). Employers would also be barred from advertising eligibility limitations based on criminal history unless those restrictions are “mandated by state or federal law,” and would be completely prohibited from advertising that final employment for a particular job is contingent upon a criminal background check. Once a conditional offer is made, employers would then have to provide the candidate with written notice of the criminal history inquiry, obtain the candidate’s written consent, and provide a standardized Notice of Rights form summarizing the OCA’s protections.
With regard to those criminal records employers are permitted to consider, the OCA would also impose additional procedural and administrative burdens which appear to be more significant than those required under the federal Fair Credit Reporting Act. Employers would have to consider information about the candidate’s rehabilitation, any inaccuracies in the record, how much time has elapsed since the crime/offense and release from custody, and how the criminal record relates to the candidate’s potential employment. The employer would then be required to document its consideration of these factors on a standardized Applicant Criminal Record Consideration Form, and “make a good faith effort” to discuss any concerns or questions it may have with the candidate. Assuming the employer still wishes to move forward with an adverse employment decision (e.g., revoke the conditional offer of employment), there are additional specific steps that the employer would have to take, including providing the candidate “in one package by registered mail” with written notification of the adverse employment decision, a copy of the criminal history inquiry results, a second copy of the Notice of Rights, and a completed copy of the Applicant Criminal Record Consideration Form. Upon receipt of this package, the candidate would have 10 days to contest the criminal history record’s accuracy and relevancy, during which time the employer may, but would not be required to, hold open the position. There are subsequent steps further delineated in the bill.
While the OCA has not received a great deal of press to this point, New Jersey employers have reason to be concerned. By preventing employers from considering criminal history early on in the hiring process and creating burdensome new recordkeeping requirements, the OCA would significantly increase the time and resources employers must devote to the hiring process.
It would also create yet another area of potential liability for employers under New Jersey law. While the OCA does not expressly authorize a private right of action, it does provide for civil penalties ranging from $500 to $7,500 per violation based on the type of violation and size of the employer. Employers should also keep in mind that employment discrimination allegations typically do not exist in a vacuum. Allegations that an employer violated the OCA could potentially lead to other allegations of wrongful conduct. It is not difficult to foresee creative plaintiffs’ attorneys using OCA violations to bring other types of employment discrimination claims under New Jersey’s Law Against Discrimination (which provides for uncapped punitive damages and attorneys’ fees).
Importantly, the OCA would not apply to small employers with less than five employees, employment involving (on average) less than 15 hours of work per week, and employment that is not (in whole or substantially) physically performed within New Jersey. The OCA would also not apply “when any federal or State law or regulation explicitly requires or permits the consideration of specific criminal convictions when making employment decisions.” This is at least some positive news for those businesses and organizations that are required by law to use and consider the results of criminal background checks, although the actual statutory language leaves plenty of room for ambiguity.
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