16 May Ban the Box Legislation – NJ follows suit
“Ban The Box” legislation prohibits employers from asking criminal history orally or on an initial employment application. Proponents believe that this provides a “second chance” for employment to those inspaniduals with a criminal record.
The goal of this legislation is to defer criminal history inquiry until later in the hiring process. A time delay allows for a thorough assessment of an applicant’s qualifications and prevents employers from eliminating a potential employee solely because he/she has a criminal history.
According to the National Employment Law Project, 1 in 4 Americans have either an arrest or a conviction on their record, in many cases for nonviolent offenses. The “ban the box” proponents seek to ensure that these inspaniduals are treated fairly and have an opportunity to enter (or re-enter) the workforce.
There are currently 66 cities and counties and 12 states to pass “ban-the-box” laws, preventing employers from asking about prior criminal history on job applications. These new laws require hiring managers to put off asking about a candidate’s criminal history until after an interview has been conducted or a provisional job offer has been extended.
Governor Chris Christie of New Jersey joined The District of Columbia when he signed legislation to “ban the box on August 11, 2014. There are currently 12 other states in the nation with this type of law (CA, CO, CT, DE, HI, IL, MD, MA, MN, NE, NM, RI).
The N.J law states that an employer with more than 15 employees must wait over 20 calendar weeks before making an initial hiring decision based on an applicant’s criminal history. This law will become effective on March 1,2015. Employers who do not comply will face civil penalties. Penalties are currently $1,000 for the first violation, $5000 for a second and $10,000 for each subsequent violation.
Unlike some jurisdictions, an employer may make any decision regarding whether to hire the employee after the initial waiting time, unless the criminal history disclosed consists of;
– An arrest or criminal accusation that did not result in a conviction (unless it is still pending);
– A conviction for a “disorderly persons offense” or conduct from another state where the date of the sentence or release from prison occurred more than five years before the application date for employment
– A conviction of a crime, where the sentence or date of release from prison occurred more than ten years before the dated application for employment.
– If an applicant’s criminal record has been erased through an executive pardon or been expunged, an employer may not take adverse employment actions against the applicant. If an adverse action is taken, an employer must document and inform a potential hire properly.
By law, New Jersey requires background and criminal history checks for all positions in the judiciary, homeland security, emergency management, law enforcement and corrections.
The law prevents local governments from enacting their own laws and replaces any similar laws that may exist. Newark and Atlantic City “ban the box” laws will be preempted when the law takes effect on March 1, 2015,
The EEOC has issued information/guidance on the appropriate use of criminal history information by an employer. It is important to follow established guidelines, monitor and follow other applicable state, local laws and regulations.