Effective November 18, 2012, an Ordinance passed by Newark, New Jersey will impose restrictions on employers in the city with five or more employees regarding the use of criminal background checks of job applicants. Newark employers will be prohibited from performing pre-job application criminal background checks and denying employment based on criminal background check results conducted post-offer without an individualized analysis of the criminal background using factors listed in the new Ordinance, which is available at: http://www.employmentlawalert.com/uploads/file/12-1630(1).pdf. Under the general requirements of the Ordinance, Newark employers may not conduct a criminal background check before making a conditional offer of employment. An employer may discuss criminal backgrounds before a job offer only if applicants disclose their criminal history voluntarily – called “self reporting” – and without solicitation. In addition, the Ordinance contains certain exemptions such as mandatory state and federal regulations requiring employers to consider criminal histories when hiring. The Ordinance allows an employer to conduct a criminal background check for a job applicant post-offer if the employer makes a “good faith” determination the job being applied for is sensitive enough that a criminal history inquiry is needed. Before conducting a criminal background check for an applicant or employee, the employer must provide standard written notification in the consent form that:

  • Upon the written consent of the applicant or employee, the employer will conduct a criminal history inquiry; and
  • Following any adverse decision by the employer regarding employment, the applicant or employee will have the right and opportunity to present evidence regarding the accuracy and relevance of the background check.
Barring certain exceptions existing for violent crimes, 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.
The Ordinance also requires Newark employers to consider the following factors when basing a hiring decision on a criminal background and also document its analysis of six factors using an ‘Applicant Criminal Record Consideration’ form:
  • 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.
Regarding “adverse action” where the employer makes an adverse employment decision after conducting a criminal background checks, the Ordinance requires the employer to:
  • 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.
Penalties for non-compliance with the new Ordinance range from $500 to $1,000. A copy of the Ordinance is available at: http://www.employmentlawalert.com/uploads/file/12-1630(1).pdf. Criminal background checks used by employers have come under great scrutiny recently. In April 2012, the U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – voted to approve 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 complete text of 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, Founder and CEO of background check firm Employment Screening Resources (ESR), has written a new whitepaper: ‘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 [email protected]. 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 [email protected]. 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.employmentlawalert.com/uploads/file/12-1630(1).pdf http://www.employmentlawalert.com/2012/10/articles/discrimination/new-requirements-for-nj-employers-and-for-employers-conducting-business-in-newark-nj/  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 [email protected]. 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 [email protected]. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.]]>