Governor Christie signed A1999, the “Opportunity to Compete Act,” on
Aug. 11.
A1999 passed the Senate in a 32-1 vote on June 26, 2014 and the Assembly in a 49-24 vote on the same day. This law regulates the use of criminal background checks
by New Jersey employers with 15 or more employees in making hiring
decisions.
Background:
In response to concern that barring people from employment
based on criminal conviction records can have a negative impact on certain
racial groups, the US Equal Employment Opportunity Commission (EEOC) published
a guidance document. It describes circumstances under which an
employer’s practices about conducting criminal background checks may be discriminatory
under federal law. Following this guidance several states and municipalities
have enacted policies addressing the hiring, firing and promotion of
ex-offenders to ensure that they are not being discriminated against and have
the opportunity to demonstrate their qualifications for particular positions.
New Jersey became the seventh state to regulate the
consideration of criminal history by private employers.
NFIB has worked with the sponsors of the bill and the
governor’s office to address many serious concerns in the original draft of
this bill including making sure employers do not have to offer conditional
employment to ask about criminal history, respond in writing to applicants with
criminal histories who are turned down for jobs and defend against lawsuits. We
also worked to get an exemption for very small employers with fewer than 15
employees.
The law:
As of March 1, 2015 most employers must wait until after the
first interview to ask about criminal history. Therefore, they must remove any
questions or “box” on their applications that ask about criminal history.
The bill specifies that an employer cannot make an oral or
written inquiry into an applicant’s criminal record until after the initial
employment application process, “ending when an employer has conducted a first
interview”. To provide employers with some flexibility, the interview can be in
person or by any other means.
Exempt from the Act:
- Federal employees
- Law enforcement, corrections, the judiciary and
homeland security - Employers actively seeking to employ those who
have criminal records -
Positions where an arrest or conviction by the
person for one or more crimes or offenses would preclude the person from
holding the job in question - Instances where any law, rule or regulation
restricts an employer’s ability to engage in specified business activities
based on the criminal record of its employee - If an applicant voluntarily discloses any
information regarding their criminal record, the employer may further inquire
about their criminal history prior to the first interview.
Penalties:
The Act does NOT allow for a private cause of action filed
by employees or applicants. Instead, the only remedy under the act is a
civil penalty in an amount not to exceed $1,000 for the first violation, $5,000
for the second and $10,000 for subsequent violations. The bill contains language to protect
employers that decide not to hire an applicant with a criminal
history.
