There has been a growing movement in the United States to “ban the box.” The box in question is a simple yes or no question standard on many job applications, but studies have shown checking yes can be a huge hindrance to finding employment. What box is The Jayson Law Group LLC talking about? The yes or no question – “Have you ever been convicted of a crime?” On August 11, 2014 Governor Christie signed “The Opportunity to Compete Act” (the “Act”) N.J.S.A. 34:6B-11 et seq. into law which will ban the box in New Jersey starting on March 1, 2015. According to the Act, New Jersey will join at least 64 states, counties, and cities which have enacted similar statutes. The Jayson Law Group LLC will dissect the law to inform businesses about what they need to know moving forward when it comes to employee hiring and “banning the box.”
Why Pass the Legislation?
With the unemployment rate high in the United States, and even higher in New Jersey, the New Jersey Legislature and the Governor felt it important to remove obstacles to employment for those with criminal records. According to the Act, 90% of large employers in the U.S. conduct background checks as part of the hiring process. Having a criminal record affects approximately 65 million U.S. adults when applying for a job. Businesses in New Jersey frequently post language in employment advertisements that either prohibit those with criminal records from applying or strongly discourage those with criminal records from applying.
So To Whom Does the Opportunity to Compete Act Apply?
Section 3 (N.J.S.A. 34:6B-13) of the Act sets out some definitions for whom the Act pertains to, and in what capacity the act applies. For purposes of the act, an Employee means any “person who is hired for a wage, salary, fee, or payment to perform work for the employer.” With that being said, the Act does not apply to people applying for domestic service positions for a family or person inside the person’s home. The Act also does not apply to independent contractors or any directors or trustees. One thing to take note of is the fact that the Act does cover interns and apprentices. So it appears the Legislature is continuing strengthening the protections for interns as well.
There are many different types of businesses in New Jersey, from small mom-and-pop establishments to large 1000 employee companies. The Opportunity to Compete Act applies only to a person, company, corporation, firm, labor organization, or association which has 15 or more employees over 20 calendar weeks. Another requirement for the Act to apply to a given Employer is that the Employer must either employ people inside New Jersey or takes applications from those inside the State of New Jersey.
As for the actual employment itself, must either be wholly or substantially in part inside the State of New Jersey and applies to “any occupation, vocation, job, or work with paying, including temporary or seasonal work, contingent work, and work through the services of a temporary or other employment agency.” As previously stated in this article, internships and apprenticeships are also covered under The Opportunity to Compete Act.
An employment application is defined as any document included in the applications for employment required to be completed by the prospective employee. The Act also defines the initial employment application process as either the period when a prospective employee makes an inquiry to an employer about a possible vacancy or when an employer first makes an inquiry to any prospective applicants regarding a job vacancy. The initial employment application process terminates upon the first interview of the prospective employee by the employer whether in person or by any other means available.
What Is an Employer Not Allowed to Do During the Initial Application Process?
While Section 3 of The Opportunity to Compete Act defines some of the terminology used in the Act, Section 4 (N.J.S.A. 34:6B-14) discusses what actions are now prohibited by an employer in the initial job application process. An employer can no longer give to a prospective employee an initial application form that asks about the prospective employee’s criminal record. Furthermore, during the initial application process an employer cannot ask a prospective employee about his or her criminal record orally or in writing during the initial employment application process.
It is important to note that should a prospective employee voluntarily discloses information regarding his or her criminal record during the initial application process the employer is permitted to ask questions regarding to the criminal record during the initial application process.
Once the initial application process is over, there is no longer a bar on employers from asking prospective employees about their criminal history. So if a prospective employee fills out an application, and then meets with someone for a first interview, once that first interview is over so is the initial application process. Refusing to hire a prospective employee due a criminal record is acceptable under the Act.
So What about Employer Advertisements?
Section 5 (N.J.S.A. 34:6B-15) of The Opportunity to Compete Act discusses employment advertisements. The employer cannot place any reference to criminal history, or that an applicant with a criminal history will not be considered, in an advertisement when the employer places runs an advertisement seeking applications for employment.
There are exceptions to this advertising rule. They are:
1) if the advertisement is for a “position in law enforcement, corrections, the judiciary, homeland security, or emergency management, or any other employment position where a criminal history record background check is requirement by law, rule or regulation”
2) if an arrest or conviction would preclude a person from holding the job by law, rule or regulation, and
3) if employing a person with an arrest or criminal record would preclude the employer from engaging in specific business activities due to the employee’s criminal record.
Apart from these three exceptions, an employer cannot state in an advertisement that a criminal record would preclude someone from employment.
Are There Any Exceptions to the Initial Application Rule?
As with all rules and regulations there is also an exception built into The Opportunity to Compete Act. In the case of the Act, those exceptions are found in Section 6 (N.J.S.A. 34:6B-16). The exceptions are the same exceptions discussed in Section 5 of the Act. And this make sense as the jobs discussed in both sections require criminal background checks as a matter of law, or involve public safety. Just to refresh, those exceptions are:
1) if the advertisement is for a “position in law enforcement, corrections, the judiciary, homeland security, or emergency management, or any other employment position where a criminal history record background check is requirement by law, rule or regulation”
2) if an arrest or conviction would preclude a person from holding the job by law, rule or regulation, and
3) if employing a person with an arrest or criminal record would preclude the employer from engaging in specific business activities due to the employee’s criminal record.
What Happens if a Business Violates The Opportunity to Compete Act?
Section 9 (N.J.S.A. 34:6B-19) of The Opportunity to Compete Act discusses what the penalties will be should someone violate the Act. Upon a business’ first violation, that business will be liable for a civil penalty up to $1,000.00. If a business violates the Act for a second time the amount of the penalty increases to up to $5,000.00. Should a business violate the Act for a third time that penalty increases to an amount not to exceed $10,000.00 and every violation thereafter will carry a similar penalty to the third strike. The fine will be collected by the Commissioner of Labor and Workforce Development in a summary proceeding.
Should a business violate the Act, the violation cannot be used in any other proceeding. The only thing that the violation is evidence of is the violation of the Act. What does this mean? Hypothetically an employee alleges a hostile working environment against their employer. If the employer violated The Opportunity to Compete Act, the employee cannot use the evidence of the violation of the Act in connection with the hostile working environment claim. Same would be true for a discrimination claim made by an employee against a company.
Conclusion
While at first glance it would appear that The Opportunity to Compete Act is a bit onerous on employers, it is not drastically changing an employer’s ability to hire an employee without a criminal record. All this legislation is doing is giving those with criminal and arrest records an even shot through the first two steps in the employment process: 1) applying for the job; 2) the initial interview for the job (either in person or any other way the business normally conducts an initial interview). It is within an employer’s right to do a criminal background check or inquire about a perspective employee’s criminal or arrest record after the initial interview. The legislature is also protecting employers who need to know about an employee’s arrest or criminal record as a matter of law, and is protecting all employers by not allowing violations of the Act to be used in any other proceeding other than one to determine if the employer violated the act.
If you have questions about the Opportunity to Compete Act, you should speak to an experienced business attorney. As a potential employee, you can also contact a criminal defense attorney to have certain types of criminal records expunged. If you are an employer, The Jayson Law Group LLC invites you to contact us either through email or using the phone number above.