Newark Bans the Box by Restricting Use of Criminal Background Checks by Employers Starting November 18

The City of Newark, New Jersey has passed Ordinance 12-1630 that takes effect Sunday, November 18, 2012 and will “ban the box” on job applications asking applicants about criminal records until they have been deemed qualified and eligible for employment and after a conditional job offer, thus restricting the ability of employers in the city with five or more employees to run criminal background checks. The text of Ordinance 12-1630 is available at http://www.esrcheck.com/file/NewarkOrdinance12-1630Text.pdf.

As reported earlier in the ESR News blog ‘City of Newark to Restrict Criminal Background Checks by Employers Beginning November 18,’ Ordinance 12-1630 prohibits employers from performing “pre-application” criminal background checks and denying employment based on background check results conducted post-offer without an individualized analysis of the criminal background using factors listed in the Ordinance. Employers are only allowed to ask about an applicant’s criminal history if:

  • The employer has already extended a conditional offer of employment to an applicant qualified for the position;
  • The employer has provided advance written notice and the applicant has consented in writing to the criminal history inquiry; and
  • The employer has made a “good faith” determination that criminal history information is relevant to the applied for position

Ordinance 12-1630 requires employers to consider six factors when basing hiring decisions on criminal background checks and to document individualized analysis of the criminal record using these factors:

  • The nature of the crime and relationship to the duties of the position;
  • Information pertaining to the degree of rehabilitation and good conduct;
  • Does the prospective job provide the applicant the opportunity to commit a similar offense;
  • Whether the circumstances leading to the offense are likely to occur;
  • The length of time that has elapsed since the offense; and
  • A certificate of rehabilitation issued by any state or federal agency.

Barring certain exceptions existing for violent crimes – such as convictions for murder, voluntary manslaughter, and sex offenses requiring registry under New Jersey law – the Ordinance allows Newark employers to inquire about convictions up to 8 years from sentencing, disorderly persons convictions or municipal ordinance violations up to 5 years from sentencing, and pending criminal charges. Employers are prohibited from inquire about, require a candidate to disclose, or take any adverse action based on:

  • An arrest or criminal accusation not currently pending;
  • Records which have been erased, expunged or subject to an executive pardon; and
  • A juvenile adjudication of delinquency or records which have been sealed.

In addition, the Ordinance requires the employer making an adverse employment decision after conducting a criminal background check – known as “adverse action” – to do the following steps:

  • Notify the applicant or employee of the adverse employment decision;
  • Provide the applicant or employee with a photocopy of the results of the criminal history inquiry, indicating the particular conviction(s) relating to the responsibilities of the job, and a copy of the Applicant Criminal Record Consideration form;
  • Provide the applicant or employee with a written notice of rejection, specifically stating the reasons for the adverse decision and including the employer’s consideration of the six factors outlined in the Applicant Criminal Record Consideration form; and
  • Advise the applicant or employee of the opportunity for review, including how the applicant or employee may present evidence related to the employer’s consideration of the six factors outlined in the Applicant Criminal Record Consideration form, and what kinds of evidence may be presented.

The Ordinance also requires employers to send a copy of these notices in one package by registered mail to the applicant or employee. Since this process differs from the federal Fair Credit Reporting Act (FCRA) required process of a Pre-Adverse Action letter followed by an Adverse Action letter after a reasonable waiting period, employers subject to the new ordinance must modify their background check processes. Under the Ordinance, applicants and employees will have 10 business days after receipt of the notices to respond to the employer regarding the results of the criminal background check. Employer must provide them with an opportunity to present information related to the accuracy and relevance of the results of the criminal history inquiry. The employer must review all information received before making any final decision regarding employment and must also document the following in writing:

  • The information and evidence provided;
  • The employer’s consideration of this information and evidence; and
  • The employer’s final action, specifically stating the reasons for the final action taken, which the employer must notify the applicant or employee of within a reasonable period of time and provide them with copies of the written documents.

Ordinance 12-1630 also makes it unlawful for an employer to “produce or disseminate any advertisement that expresses, directly or indirectly, any limitation on eligibility for employment arising from a candidates’ criminal history.” Penalties for non-compliance with the new Ordinance range from $500 to $1,000.

The full text of Ordinance 12-1630, titled “Ordinance To Assist The Successful Reintegration Of Formerly Incarcerated People Into The Community By Removing Barriers To Gainful Employment And Stable Housing After Their Release From Prison; And To Enhance The Health And Security Of The Community By Assisting People With Criminal Convictions On Reintegration Into The Community And Providing For Their Families,” is available at http://www.esrcheck.com/file/NewarkOrdinance12-1630Text.pdf.

Newark joins a growing list of U.S. cities that have joined the “ban the box” movement. According to the National Employment Law Project (NELP) resource guide ‘Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records,’ 42 cities and counties have banned the box. The resource guide from NELP – a non-partisan, not-for-profit organization that focuses on issues affecting low-wage and unemployed workers – is available at http://www.nelp.org/page/-/Press%20Releases/2012/PR-Ban-the-Box-Momentum.pdf?nocdn=1.

Criminal background checks for employment have come under greater scrutiny recently. In April 2012, the U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – approved updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The updated EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

To help employers comply with updated EEOC rules, Attorney Lester Rosen, a safe hiring expert and the Founder and CEO of background check firm Employment Screening Resources (ESR), has written a whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance.’ The complimentary whitepaper is currently undergoing a controlled release and is available only to employers interested in screening by emailing EEOCwhitepaper@esrcheck.com.

For information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening firm accredited by The National Association of Professional Background Screeners (NAPBS) – at http://www.esrcheck.com/, call Toll Free 888.999.4474, or email customerservice@esrcheck.com. For information about the newly published second edition of ‘The Safe Hiring Manual’ by Les Rosen, which contains an entire chapter devoted to the updated EEOC Guidance, visit: http://www.esrcheck.com/SafeHiringManual.php.

Sources:

http://www.esrcheck.com/file/NewarkOrdinance12-1630Text.pdf
http://www.nelp.org/page/-/SCLP/2011/CityandCountyHiringInitiatives.pdf?nocdn=1
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
http://www.esrcheck.com/wordpress/2012/10/17/city-of-newark-to-restrict-criminal-background-checks-by-employers-beginning-november-18/

About Employment Screening Resources (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more, visit http://www.esrcheck.com, call 888.999.4474, or email customerservice@esrcheck.com.

About ESR News:

The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.

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