New Jersey About Set to Restrict the Use of Criminal Records in Employment Settings

Despite pressure from business leaders and private detectives, the latest version of the New Jersey Senate Budget and Appropriations Committee’s “Opportunity to Compete Act” [SENATE, No. 2124] continues to impose restrictions upon New Jersey employers when advertising for, and interviewing, prospective employees as it applies to criminal records.

According to the Committee, it determined that “[r]emoving obstacles to employment for people with criminal records provides economic and social opportunities to a large group of people living in New Jersey, increasing the productivity, health and safety of New Jersey communities.” It also asserted “[c]riminal background checks by employers have increased dramatically in recent years, with estimates of 90 percent of large employers in the United States now conducting background checks as part of the hiring process…. and that [b]arriers to employment based on criminal records stand to affect an estimated 65 million adults in the United States with criminal records.”

Concerned by employment advertisements in New Jersey that include language regarding criminal records that either explicitly preclude or strongly dissuade people from applying, the Committee advanced its bill to the entire Senate to tackle these obstacles to employment.

If passed, the bill will preclude an employer (of 15 or more people) from requiring a job applicant to complete any employment application that makes any inquiries regarding the applicant’s criminal record during the “initial employment application” process. It will also preclude the employer from making any oral or written inquiry regarding an applicant’s criminal record during the initial employment application process. The term “initial employment application” means the period from advertisement through completion of initial interview.

If an applicant discloses any information regarding the applicant’s criminal record, by voluntary oral or written disclosure, during the initial employment application process, the employer may make inquiries regarding the applicant’s criminal record during the initial employment application process.

Notwithstanding the foregoing, employers should be aware that if the employment is for a position where a criminal history record background check is required by law, rule or regulation, or where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule or regulation, or where any law, rule, or regulation restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees, the restrictions of the bill do not apply.

This last exception is key for many of our clients. For our non-regulated clients that send employees into regulated entities like banks, hospitals, and mortgage lenders, their contracts routinely contain clauses that require all employees to be screened and failure to produce proof of a background check can void the contract.

Hence, when advertising for a position, consider all job assignments the candidate may be obligated to fulfill. If a potential assignment is in a regulated industry where a background check will be needed, the bill’s restrictions on advertising and interviewing may not apply.