Written By ESR News Blog Editor Thomas Ahearn
Effective March 1, 2015, Ban the Box legislation in New Jersey – (S2124) “The Opportunity to Compete Act” – will establish certain employment rights for reformed ex-offenders and provides job applicants who have criminal records with protections when they seek employment. The law prevents employers from asking about criminal records of job applicants early in the hiring process. The Ban the Box Act is available at http://www.njleg.state.nj.us/2014/Bills/S2500/2124_I1.HTM.
“The Opportunity to Compete Act” specifically prohibits employers in New Jersey from inquiring – either orally or in writing – about criminal records of job applicants or requiring job applicants to complete applications that ask about criminal records during the initial employment application process. However, the Ban the Box Act does allow employers to ask about criminal records during the initial employment application process if:
- The position is in law enforcement, corrections, the judiciary, homeland, security or emergency management;
- A criminal history record background check is required for the position by law;
- The position, by law, precludes employment of a person with an arrest for or a conviction of a crime or offense;
- The employer is restricted from specified business activities based on the criminal record of its employees; or
- The employment sought or being considered is for a position 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 for or convicted of crimes or offenses.
The Ban the Box Act defines “initial employment application process” as the period of time beginning when a job applicant first makes an inquiry to an employer about a position or when an employer first makes any inquiry to a job applicant for a position. The initial employment application process ends when employers conduct a first interview of applicants. Employers may ask about criminal records after the initial employment application process ends.
In addition, the Ban the Box Act prohibits employers from publishing advertisements for employment which state they will not consider applicants who have been arrested for or convicted of a crime or offense. Exceptions to this rule include advertisements for:
- Law enforcement, judicial, homeland security, and emergency management positions;
- Positions for which a background check is required by law;
- Positions which by law preclude employment of a person with an arrest for or a conviction of a crime or offense; and
- Positions with an employer which is restricted from specified business activities based on the criminal record of its employees.
Employers who violate the Ban the Box Act are liable for a civil penalty of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. The Ban the Box Act does not create or establish a standard of care or duty for employers with respect to any law and does not create, establish, or authorize a private cause of action by an aggrieved person against an employer who has violated the bill’s provisions.
BAN THE BOX INFORMATION FROM ESR
Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – is a nationwide background check firm accredited by the National Association of Professional background Screeners (NAPBS). ESR offers employers a Ban the Box Information Page containing links to the latest news and resources about the Ban the Box movement. The page is available at http://www.esrcheck.com/Ban-the-Box/.