Final Regulations Issued by the NJDOL for New Jersey Employers Regarding Ban the Box
Last month, the New Jersey Department of Labor and Workforce Development (NJDOL) released final regulations to further define some of the ambiguous terms contained in New Jersey’s “Ban the Box” law, titled the Opportunity to Compete Act (OTCA), which went into effect March 1, 2015. As a reminder, OTCA prohibits most New Jersey employers from requiring an applicant to complete a job application that makes any inquiries regarding the applicant’s arrest or criminal record, or from making any inquiry (verbal or written) concerning an applicant’s arrest or criminal record during the “initial employment application process,” which runs from the employer’s first “contact” with the applicant concerning potential employment and concludes when the employer has conducted a first interview of the job applicant, with some industry exceptions.
These regulations clarify that OTCA applies to all employers in New Jersey with 15 employees or more over 20 calendar weeks doing business in the state. In a bit of good news, the regulations permit employers to use multi-state application forms that may ask criminal background questions, as long as there is a disclaimer for New Jersey applicants stating that, “An applicant for a position the physical location of which will be in whole, or substantial part, in New Jersey is instructed not to answer this question.” Importantly, employers may also advise applicants that they may be subject to a criminal background check as a condition of employment (a common practice that New York City’s “Ban the Box” law specifically prohibits).
The new regulations define a first interview as any “live, direct contact” between the employer and applicant, whether by telephone, video conferencing, or in person. Notably, an exchange of e-mails or the completion of a written or electronic questionnaire is not considered to be a first interview.
In addition to defining a “first interview,” OTCA interprets “inquiries” very broadly. Consequently, it does not permit any searches of publicly available records, including Internet searches regarding of an applicant’s criminal background. The OTCA also prohibits an employer from hiring a third party to conduct a criminal background check of the applicant during the initial employment application process.
In stark contrast to neighboring New York City, which does not permit any queries regarding an applicant’s criminal history until after a conditional offer of employment has been made, a New Jersey employer is permitted to ask about an applicant’s criminal history and to conduct a background check after the conclusion of the first interview. The regulations also provide much-needed clarity in terms of how the OTCA applies to those employers that use using employees from temporary help firms and professional employer organizations.
Employers should become familiar with the final regulations to ensure compliance.
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