The New Jersey Senate recently introduced a bill that would significantly restrict an employer’s ability to ask about and consider a current or future employee’s criminal history in the employment process. Under Bill No. S.2586, also known as the Opportunity to Compete Act (OCA) or “Ban the Box” bill, most employers would be prohibited from inquiring about an applicant’s criminal history during the application process, either directly or via a background check, until after a conditional job offer is made. Once a conditional job offer is made, an employer would be permitted to inquire about the applicant’s criminal history only after providing a detailed notification form, obtaining written consent from the applicant, and then providing the applicant with a standardized notice of rights form. Employers would then be permitted to consider only those specific types of convictions or pending charges expressly identified within the act, and would be precluded from considering non-pending arrests, or erased, expunged, pardoned, or juvenile convictions.
Under the proposed bill, employers would also be barred from advertising eligibility limitations based on criminal history unless those restrictions are “mandated by state or federal law,” and would be completely prohibited from advertising that final employment for a particular job is contingent upon a criminal background check. Once a conditional offer is made, employers would then have to provide the candidate with written notice of the criminal history inquiry, obtain the candidate’s written consent, and provide a standardized Notice of Rights form summarizing the OCA’s protections.
With regard to those criminal records employers are permitted to consider, the OCA would also impose additional procedural and administrative burdens which appear to be more significant than those required under the federal Fair Credit Reporting Act. Employers would have to consider information about the candidate’s rehabilitation, any inaccuracies in the record, how much time has elapsed since the crime/offense and release from custody, and how the criminal record relates to the candidate’s potential employment. The employer would then be required to document its consideration of these factors on a standardized Applicant Criminal Record Consideration Form, and “make a good faith effort” to discuss any concerns or questions it may have with the candidate. Assuming the employer still wishes to move forward with an adverse employment decision (e.g., revoke the conditional offer of employment), there are additional specific steps that the employer would have to take, including providing the candidate in one package by registered mail with written notification of the adverse employment decision, a copy of the criminal history inquiry results, a second copy of the Notice of Rights, and a completed copy of the Applicant Criminal Record Consideration Form. Upon receipt of this package, the candidate would have 10 days to contest the criminal history record’s accuracy and relevancy, during which time the employer may, but would not be required to, hold open the position. There are subsequent steps further delineated in the bill.
There is no right to a private cause of action under the act as currently drafted, and employers would only be liable for civil penalties ranging on a sliding scale from $500 to $7,500, depending upon the number of workers employed by the company and the number of violations.