New Jersey Ordinance Impacts Employers’ Use of Criminal History Records

Posted in Business & Corporate, Employment

With the publication of the EEOC’s Strategic Enforcement Plan, many New Jersey municipalities may begin passing ordinances that protect job seekers with criminal backgrounds.  The EEOC’s Plan, which has already taken effect, highlights the elimination of systemic barriers in recruitment and hiring as one of its nationwide priorities.  Notably, New Jersey’s largest city, Newark, is leading the charge with its passage of an ordinance that restricts Newark employers’ ability to utilize criminal records for employment purposes.

BACKGROUND

Newark City Officials proposed this law after a study showed the following: 
  • an arrest, without any conviction, can serve as a barrier to employment;
  • many more Newark and Essex County residents who are or have been involved in the criminal justice system have been sentenced to probation and were never incarcerated;
  • criminal background checks by employers have increased dramatically in recent years, with estimates of 90% of large employers in the U.S. now conducting background checks as part of the hiring process; and
  • many individuals with criminal records represent a group of job seekers, ready to compete for employment and contribute to society.
TEST FOR DETERMINING WHETHER BACKGROUND CHECKS ARE LEGAL
 
Newark employers with five or more employees will be limited in their ability to conduct criminal background checks on applicants prior to extending a conditional offer of employment.  After a conditional offer is extended, employers may make narrow criminal background inquiries, provided that there has been a “good faith determination” that criminal history is relevant based on the type of position, the employer has provided the candidate with advance written notice of the background check, and the candidate has agreed to the background check in writing.  Even if these requirements are met, the Newark ordinance limits an employer’s inquiry to 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; and
  • 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, whether the prospective position provides an opportunity for the commission of a similar offense, and the amount of time that has elapsed since the offense.  If after conducting a criminal background check the employer decides not to hire the candidate, the ordinance requires the employer to provide the candidate with a form stating the reason for rejection and to give the candidate an opportunity to contest the decision.  
 
THE TAKE AWAY
 
It is clear from the language of the ordinance, that any decision not to hire an applicant with a criminal background must be narrowly tailored to the job in question.  Employers throughout the state, and especially in Newark, should review current hiring practices, particularly with respect to criminal background checks, and work with counsel to confirm these processes comply with the new ordinances that are certain to appear and to avoid EEOC involvement.