The national movement towards “Banning the Box” has made its way to New Jersey and it could mean additional red tape for employers who want to perform criminal background checks on prospective employees. The New Jersey Assembly Labor Committee recently voted to send the “Opportunity to Compete Act” to the full assembly for approval.  The Act essentially bars employers with fifteen or more employees from inquiring whether a prospective employee has been convicted of a crime. Employers who still wish to obtain information about an applicant’s criminal history can do so, but only after a conditional offer of employment is made and the applicant consents to the background check.

The bill, as proposed, provides that an employer can withdraw an offer of employment in the event that a consensual background check is conducted and reveals criminal activities which the employer deems unsatisfactory.  However, the applicant then has ten days to explain the relevant circumstances. If the employer still wishes to withdraw the offer of employment it would have forty-five days to provide an explanation to the candidate and would be required to provide a Criminal Record Consideration Form indicating how it arrived at its decision.

The Criminal Record Consideration Form would be required of any employer wishing to undertake a background check that results in it rescinding an offer of employment. Employers would have to document that certain factors were weighed in arriving at the decision, including the relevance of the conviction to the type of employment being sought. Additionally, different types of convictions would be handled differently in the consideration process. A conviction for murder, attempted murder, arson, sex offenses that result in jail time, robbery, kidnapping, human trafficking, possession of weapons, burglary, aggravated assault and terrorism could be considered regardless of how long ago they occurred.  However, convictions for other crimes in the 1st-4th degree could only be considered if they happened within the past 10 years. Disorderly persons convictions could only be considered if they happened within the past 5 years. Arrests that did not lead to convictions and any expunged or sealed records would likely be prohibited from consideration altogether.

Although the bill would produce additional work for employers, there are several employer-friendly provisions which soften the blow. One such provision would ban any private cause of action against an employer for violating the Act.  The only recourse for aggrieved individuals would be to file a complaint with the New Jersey Division of Civil Rights. The Division could then levy a fine against the employer but only if it finds an employer’s conduct met the high standard of “gross negligence.”

The purpose behind the Act is to eliminate barriers to employment by removing the initial stigma attached to applicants having a criminal record.  Studies have shown that many such applicants are never even considered once that information is provided. A 2011 National Employment Law Project study found that 65 million Americans have been convicted of a crime that could show up on a background check.  Therefore, it is easy to see why there is so much support for this legislation.  Two New Jersey cities, Atlantic City and Newark have already passed ordinances “banning the box” in certain situations.  Additionally, some of NJ largest employers have chosen to voluntarily remove criminal history inquiries on their employment applications. It certainly appears that the tides are turning in favor of a ban.

However, it is important to note that the Opportunity to Compete Act is not yet law in New Jersey so employers are not yet required to abide by its terms.  It is very possible that the procedures and restrictions outlined above could be changed if and when the bill actually becomes law.  However, it is always good for employers to be aware of potential legal changes that could eventually impact them so that they can prepare accordingly. Should the bill become law, employers are urged to contact a qualified employment attorney for advice on how to properly navigate the changing legal climate.  Further, employers who wish to voluntarily change their procedures in advance should do so with the assistance of counsel to ensure that their new policy is crafted in accordance with all state, local and federal laws and regulations.