New York City Is One Step Closer To Banning The Box Giving Job Applicants a “Fair Chance” at Employment

On June 10, 2015, the New York City Council approved a “Ban the Box” law that prohibits private employers from inquiring about applicants’ past criminal convictions until the point of a job offer. Although New York State already has a similar law which applies to city contractors and agencies, the new legislation, called The Fair Chance Act, extends these regulations to private employers. The policy applies to any employer with four or more employees that conducts business in New York City. Under the new law, an employer is not permitted to ask about criminal history and/or conduct a background check until a conditional job offer has been extended. If a company decides to withdraw the offer after learning of the applicant’s criminal history, it needs to give the applicant a written explanation of the decision. Further, the employer needs to hold the position open for three days to allow the applicant an opportunity to respond and provide any proof of rehabilitation.

The Fair Chance Act would not affect federal and state laws that allow employers in certain industries to consider applicants’ criminal histories, including law enforcement, positions of public trust, and jobs that entail working with children. Mayor De Blasio is expected to sign the bill in the coming weeks, and stated that “[t]his legislation seeks to actually open the door to jobs for people rather than damning them to no economic future.”

These new requirements take effect in 120 days following the law’s enactment. Employers in New York City should begin consulting with legal counsel to ensure that their hiring process forms, job applications and hiring policies are in compliance with the new legislation. Legal compliance should also include educating managers, supervisors and recruiting personnel regarding these new standards to ensure they are communicated throughout the organization.

For more information regarding this legislation and to learn how your business can implement best practices when hiring, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@nullgenovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

New Jersey Set to Prohibit Employers from Screening Job Applicants for Criminal Convictions Until After Job Interview

Effective March 1, 2015, any employer with 15 or more employees that does business in New Jersey or accepts applications for employment within New Jersey is prohibited from inquiring into an applicant’s criminal history record until the employer conducts an interview of the applicant.  On August 11, 2014, Governor Christie signed into law what is commonly referred to as the “ban-the-box” bill, so named because it prohibits an applicant from being disqualified from consideration for a job opening early in the hiring process simply because the applicant answered “yes” to an inquiry about criminal convictions.  Employers may not publish in a job posting or enforce a policy against consideration of applicants with a criminal history.  Employers may still use background checks to ensure that job applicants comply with job requirements and inquire about criminal background after the interview.  The term applicant is defined broadly to include anyone considered for employment, anyone who requests consideration for employment, and even current employees, with the proviso that the employment must be entirely or substantially in New Jersey.

Once the law takes effect, an employer may ask about and consider a job applicant’s criminal history after it interviews the applicant with a key exception being that a covered employer may not refuse to hire an applicant on the basis of a criminal record that has been expunged or erased through executive pardon.  Certain employers such as law enforcement, corrections bureaus, the judiciary, the U.S. Government, emergency management, and employers whose jobs by law disqualify an applicant with a criminal conviction are exempt from these requirements.  Also exempt are domestic workers, independent contractors, directors and trustees.

The new law specifically bars any private cause of action for a violation.  However, an employer is subject to civil penalties, starting at $1,000 for the first violation, $5,000 for the second violation, and $10,000 for the third and subsequent violations.

These new requirements take effect in six months. Employers should begin consulting with legal counsel to ensure that their hiring process forms, job applications and hiring policies are in compliance with the new legislation.  Legal compliance should include educating managers, supervisors, and recruiting personnel regarding these new standards to ensure they are pushed down into the organization.

If you have any questions or for more information about the requirements of the ban-the-box legislation and its impact on your business’s hiring procedures, please contact Patrick W. McGovern, Esq., at 973-535-7129, pmcgovern@nullgenovaburns.com or Allison Gotfried, Esq., at 973-646-3297, agotfried@nullgenovaburns.com.

Significant Limitations Placed on Newark Employers Considering Criminal Records when Hiring

Following updated federal guidance from the EEOC last April concerning limits on employers’ use of arrest and conviction records when making employment decisions, Newark has taken matters into its own hands passing a new ordinance which restricts Newark employers’ ability to consider criminal records when making hiring decisions.

Beginning November 18, 2012, Newark employers with five or more employees will be limited in their ability to conduct criminal background checks on applicants.  Going forward, covered employers may not make any criminal background inquiries, whether orally or in writing, prior to extending a conditional offer of employment.  If a conditional offer is extended, employers may make narrow criminal background inquiries, and only if there has been a “good faith determination” that criminal history is relevant based on the sensitivity of the position, the employer has provided the candidate with advance written notice of the background check, and the candidate has agreed to the check in writing.  Even if these preconditions are met, Newark employers may only inquire into certain criminal history, including:

  • indictable offense convictions for eight years following sentencing;
  • disorderly persons convictions or municipal ordinance violations for five years following sentencing;
  • pending criminal charges, including cases that have been continued without a finding until the case is dismissed;
  • convictions for murder, voluntary manslaughter, and sex offenses requiring registry punishable by a term of incarceration in state prison, regardless of the length of time that has passed since disposition.

The ordinance also requires employers to consider certain factors when evaluating the results of a permissible criminal background check, including the nature of the crime and its relationship to the duties of the position sought, any information pertaining to rehabilitation, the amount of time that has elapsed since the offense, and whether the prospective position provides an opportunity for the commission of a similar offense.  In the event the candidate is not ultimately hired, the ordinance also requires covered employers to provide the applicant with a form stating the reason for rejection and to give the applicant an opportunity to respond.

The Municipal Council has made it clear to Newark employers that any decision not to hire an applicant with a criminal background must be narrowly tailored to the job in question.  Newark employers should review current hiring practices, particularly with respect to criminal background checks, and work with counsel to confirm these processes comply with the new ordinance.

If you have any questions or for further information about implementing lawful pre-hire processes, please contact James J. McGovern, III Esq., jmcgovern@nullgenovaburns.com or Douglas J. Klein, Esq., dklein@nullgenovaburns.com, in the Labor Law Practice Group.