New Jersey’s New “Ban the Box” Law
“Banning the Box” is the catch phrase used to describe a growing trend in legislation that bars would-be employers from inquiring about a job applicant’s criminal record during the initial round of the application process. The “box” refers to the familiar question on most written job applications expressly probing into prior arrests, charges, and convictions, although the focus of the movement extends to interviews or early inquiries of any kind into criminal background. On August 11, 2014, New Jersey joined several other states and cities throughout the country by passing the “Opportunity to Compete Act,” prohibiting certain employers from early consideration of an applicant’s criminal record. The law radically alters typical early screening procedures, and employers and applicants should take note.
Under the new law, employers of fifteen or more workers (over a minimum of twenty calendar weeks) may inquire about an applicant’s criminal record only after an initial interview or assessment has taken place. Only after consideration has been given to the merits of the candidate in these early stages can the employer explore the criminal background of the candidate. The law carves out exceptions, including but not limited to jobs in law enforcement and the judiciary, jobs for which criminal checks are required by law, and jobs for which lack of prior record is required for licensing or similar purposes. Beyond those narrow exclusions, employers face significant penalties for violating the law.
Public Policy Considerations
The policy behind the legislation is simple. Often in this competitive job market, otherwise-qualified job seekers - capable individuals who could easily enter and thrive in the workforce - face almost-certain rejection upon their disclosure of past criminal histories that bear no resemblance to the rehabilitated candidate presently seeking employment. Banning early inquiry into criminal backgrounds attempts to level the playing field for deserving individuals whose success is impeded only by the shadow of a past and anomalous transgression or mistake. The goal of the law is to help get deserving feet into doors that would likely have slammed shut without the help of the legislation.
Understandably, however, many applicants with unsavory histories who would place the employer in peril or otherwise fail to meet the standards for the job can and should be weeded out in an employer’s quest to find the appropriate candidate and protect its business interests. Employers must be permitted to exercise sound discretion in their hiring choices. The law, therefore, does allow for consideration of criminal history at some point later in the process, and even at the outset in certain instances when otherwise required by law.
Impact on Employers – Review Procedures and Train Staff
So where does this leave employers? Although the legislation does not take effect until March of 2015, employers should immediately review their written applications and interview policies and protocols to ensure their practices do not run afoul of the law. It is always important to seek the assistance of experienced legal counsel when developing a framework for employment applications that complies with relevant and applicable law. Now, more than ever, employers must understand their rights and limitations. If the law applies to a particular employer, it is important to recognize that no advertisement or posting can even suggest that candidates with criminal histories will not be considered. Nor can early inquiries hint at the issue of past criminal activity, unless volunteered by the candidate. Violations of the law will exact penalties of $1,000 for a first offense, $5,000 for a second offense, and $10,000 for each subsequent violation. Employers must identify when they can and how they will consider criminal records and train their staff accordingly.
Impact on Applicants – No Substitute for Expungement
It is important that applicants also understand their rights and seek legal advice if they believe an employer has violated the law. Nevertheless, while New Jersey’s Opportunity to Compete Act does much to assist applicants, there is no question that criminal histories can and will likely be considered at some point in the process. For that reason, it is always important for individuals to explore their eligibility for expungement of their criminal (and even juvenile) histories before embarking on the job search process.
Whether convicted or not, records of arrests and charges remain available for easy access and can pose insurmountable barriers for those seeking to live law-abiding and productive lives. Through expungement proceedings, these records can be sealed and shielded from disclosure in eligible cases. Expungements essentially restore individuals who have been arrested, charged, and/or convicted of a crime or offense to the place they were prior to the offense. Simply put, expungements permit applicants, with very narrow exception, to deny the existence of any criminal record. Expungement orders bar disclosure of the information by any officials or law enforcement agencies with access to information about an individual’s criminal background and require them to respond, upon a request for information, that there is no record.
An expungement is an invaluable tool for anyone seeking to escape the burden of a past record. Because expungements require strict adherence to the laws governing the process and the filing of a petition in Superior Court, those seeking to have their records expunged should always consult an attorney experienced in this area. Too often, clients seek the assistance of a capable attorney only after they learn – sometimes from a prospective employer – that an earlier expungement attempt was not handled properly, leaving records still available through a routine background check. Therefore, it is important that expungements be done right, ensuring that records are properly sealed. “Banning the box” is a start, but expungement remains the most-effective way to ensure that an applicant is in the best possible position to compete for jobs in this difficult economy.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the date of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.