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.

New OFCCP Directive Targets Applicant Screening for Criminal History Record

On January 29, 2013 the Office of Federal Contract Compliance Programs (OFCCP) provided guidance to federal contractors on hiring policies and processes that screen out job applicants who have criminal records. OFCCP’s Directive 306 cautions covered employers that hiring policies that summarily exclude applicants from employment based on a criminal record, without considering such factors as the age and the nature of the offense, may have a disparate, and therefore illegal, impact on racial and ethnic minority job applicants. OFCCP summarizes its current position as follows: “Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law.”

Directive 306 highlights several best practices to avoid liability for discriminating on the basis of an applicant’s criminal record. First, OFCCP suggests that employers not inquire about the applicant’s criminal record at all. But if the employer does inquire, OFCCP suggests that the employer ensures that its applicant screening policies and procedures include an individualized assessment of the applicant’s past criminal conduct and are narrowly drawn to screen out only applicants whose criminal convictions demonstrate unfitness for performing the job or jobs in questions. In other words, before a criminal conviction is considered as disqualifying, the OFCCP Directive cautions that the offense should be related to the job duties for which the applicant is being considered and the employer can articulate a business necessity for disqualifying the applicant.

Federal contractors and subcontractors should review their hiring processes to determine the extent to which they exclude minority applicants from employment based on criminal history, even if unintentionally, and have legal counsel review these policies, and the statistical results of applying them, to ensure compliance with OFCCP requirements.

For more information on Directive 306 and our firm’s OFCCP audit and compliance services, contact Patrick W. McGovern, Esq., pmcgovern@nullgenovaburns.com or Douglas J. Klein, Esq., dklein@nullgenovaburns.com, in our Labor Law Practice Group.