Legislation recently introduced in the New Jersey Senate – Senate Bill No. 2586, ‘The Opportunity to Compete Act’ (OCA) – would “ban the box” asking about criminal histories on job applications and restrict questions by employers about criminal records of current employees or applicants. The OCA would also prohibit employers in New Jersey from inquiring about the criminal history of job applicants until after a “conditional offer of employment” is made. The full text of Senate Bill No. 2586, ‘The Opportunity to Compete Act’ is available at http://www.njleg.state.nj.us/2012/Bills/S3000/2586_I1.PDF.
Sponsored by state Senators Teresa Ruiz (District 29 – Essex), Sandra Bolden Cunningham (District 31 – Hudson), and Ray Lesniak (District 20 – Union), OCA would prevent most background checks made “pre-job offer” except when certain employers are required or permitted by law to consider criminal histories in employment decisions. Employers would also be prohibited from placing job advertisements with limits based on criminal histories – unless those restrictions are “mandated by state or federal law” – and from job advertising that final employment is contingent upon a criminal background check.
Under the OCA, employers wanting to perform a criminal background check after a conditional job offer would need to provide applicants with a written notice of the background check, obtain written consent from the applicant, and provide a Notice of Rights form summarizing OCA protections. Several additional steps employers need to follow – including careful consideration of criminal records, documenting these consideration factors on an Applicant Criminal Record Consideration Form, making a “good faith effort” to discuss concerns or questions, and specific “adverse action” requirements – are outlined in the bill.
The OCA provides for civil penalties ranging from $500 to $7,500 per violation depending on the type of violation and employer size. The legislation only applies to employers with five or more employees and employment that involves 15 hours of work per week or more on average that is substantially physically performed in New Jersey. The OCA does not apply “when any federal or State law or regulation explicitly requires or permits the consideration of specific criminal convictions when making employment decisions.” The bill is available at http://www.njleg.state.nj.us/2012/Bills/S3000/2586_I1.PDF.
The “Ban the Box” movement in gaining popularity in the United States. A November 2012 Resource Guide from the National Employment Law Project (NELP) shows over 40 cities and counties nationwide – including Boston, Chicago, Detroit, New York, San Francisco, Seattle, and Washington DC – have joined the “ban the box” movement to remove questions on job applications about a job applicant’s criminal history. The Resource Guide from NELP – an organization that focuses on issues affecting low-wage and unemployed workers – is available at http://nelp.3cdn.net/f3a28d325b4b237428_00m6bk6qf.pdf.
This trend of cities and states adopting “ban the box” policies is one of the ‘Top Ten Background Check Trends for 2013’ chosen by ESR Founder and CEO Attorney Lester Rosen. Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – is a nationwide background screening provider accredited by The National Association of Professional Background Screeners (NAPBS®). For more information about background checks from ESR, please visit http://www.esrcheck.com, call Toll Free 888.999.4474, or email [email protected].
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