“Opportunity to Compete Act” becomes law
New statute prohibits pre-interview inquiries about criminal convictions in most cases
Legislation that prohibits employers from asking job applicants about previous arrests or convictions in advance of an interview has been signed into law in New Jersey. The “Opportunity to Compete Act” is designed to remove barriers to employment that have historically prevented individuals with prior convictions from reaching the interview process. The bill has also been referred to as “ban the box” legislation, in reference to the “yes/no” checkbox question commonly found on employment applications regarding previous convictions.
S-2124 (Cunningham) / A-1999 (Watson-Coleman) bars employers from making inquiries about a job candidate’s criminal record during the “initial employment application process,” defined in the bill as “the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or job vacancy or when an employer first makes any inquiry to an applicant for employment about a prospective employment position or job vacancy, and ending when an employer has conducted a first interview, whether in person or by any other means, of an applicant for employment.”
The new law applies to most employers with 15 or more employees.
Under the bill, during the initial employment application process, an employer may not require an applicant to complete a job application that makes inquiries about prior criminal history, nor may an employer make oral inquiries regarding the applicant’s prior criminal history. If the applicant discloses such information voluntarily during this initial period without being asked, an employer may pursue further inquiries.
Employers will still be permitted to seek information regarding an applicant’s criminal record once the “initial application process” has passed. At this point, an employer may still use criminal history as a factor in the hiring decision, unless the applicant’s criminal record, or relevant portion, has been expunged or erased through executive pardon, and provided that other laws and regulations are not violated.
The ban on criminal history inquiries during the initial employment application process would not apply if:
- the position being filled or sought is in law enforcement, corrections, the judiciary, homeland security or emergency management;
- the position being filled or sought is one where a criminal history record background check is legally required, or where an arrest or conviction by the person would or might legally preclude the person from holding such employment; or
- any law, rule, or regulation exists which restricts the employer’s ability to engage in specified business activities based on the criminal records of its employees.
The law also exempts employers if the position being sought or filled is 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 (e.g., prisoner re-entry and similar programs).
The legislation, spearheaded by the New Jersey Institute for Social Justice and many other advocates, was signed by Governor Christie on August 11, 2014. It takes effect March 1, 2015.
This document is provided for general informational purposes and does not constitute legal advice or a legal opinion. For answers to specific questions concerning your situation, you should consult a knowledgeable attorney who can advise you regarding your particular circumstances.