New Jersey Issues Ban the Box Regulations and Guidance

 BanTheBox

Written By ESR News Blog Editor Thomas Ahearn

On December 7, 2015, the New Jersey Department of Labor and Workforce Development (NJDOL) published its final regulations and guidance for Ban the Box legislation passed in the “Garden State” called The Opportunity to Compete Act (OTCA) which took effect immediately. The final regulations – and the NJDOL comments to those regulations – clarify some issues regarding the OTCA.

  • An “Employer” affected by the Ban the Box law is defined as any person, company, corporation, firm, labor organization, or association, which has 15 or more employees – whether those employees work inside or outside of New Jersey – and does business, employs persons, or takes applications for employment within the state of New Jersey.
  • The “Initial employment application process” in the Ban the Box law refers the period beginning when an applicant first makes an inquiry to an employer about a job or when an employer first makes any inquiry to an applicant for a job, and ending when an employer has conducted a first interview of an applicant for a job in person or by any other means.
  • The “Interview” in the Ban the Box law is defined as any “live, direct contact by the employer with the applicant, whether in person, by telephone, or by video conferencing, to discuss the employment being sought or the applicant’s qualifications.” The interview shall not mean the exchange of e-mails or the completion of a written or electronic questionnaire.
  • According to the Ban the Box law, New Jersey employers receiving job applications from at least one state other than New Jersey may include an inquiry regarding criminal records on a job application as long as immediately preceding the inquiry there is a statement that instructs an applicant for a position in New Jersey to not to answer the criminal record question.
  • While the Ban the Box law does not specifically prohibit an employer from Internet public record searches on an applicant’s criminal record before the initial application process is complete, the NJDOL commented that to read the law so as to exempt such Internet and other public records searches concerning an applicant’s criminal record would “render the law meaningless.”
  • Since an inquiry by an employer concerning DWI/DUI or motor vehicle violations involves obtaining information collected by criminal justice agencies on individuals and may consist of descriptions of arrests, detentions, indictments, or other formal criminal charges, such inquires during the “initial employment application process” are in violation of the Ban the Box law.

The NJDOL final regulations and guidance for the New Jersey Ban the Box law also clarifies several other issues and additional points involving the OCTA including Interns, Apprentices, Independent Contractors, Leasing Agencies, and Referral Agencies. The NJDOL final regulations and guidance is available at http://www.esrcheck.com/file/NJDOL-Final-Regulations-Guidance-Opportunity-To-Compete-Act.pdf.

As reported by earlier by ESR News, the Ban the Box law in New Jersey originally took effect on March 1, 2015. The OTCA established certain employment rights for reformed ex-offenders and provided job applicants who have criminal records with protections when they seek employment such as preventing employers from asking about criminal records of job applicants early on in the hiring process.

The Ban the Box movement is spreading rapidly across the United States. More than 100 U.S. cities and counties have passed Ban the Box legislation. In addition, 18 states – California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Oregon, Rhode Island, Vermont, and Virginia – have Ban the Box restrictions in place.

ESR Supports Sensible Ban the Box Policies

Employment Screening Resources® (ESR) is a longtime supporter of sensible Ban the Box polices and encourages employers to prepare to adopt Ban the Box policies. To help employers stay up-to-date with Ban the Box, ESR offers a complimentary Ban the Box Information Page with links to news, resources, and legislation that is available at http://www.esrcheck.com/Ban-the-Box/.

NOTE: Employment Screening Resources (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this web site is for educational purposes only.

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