On March 1, 2015, New Jersey will implement a new act called “The Opportunity to Compete Act.” This law provides that employers will not be able to investigate a job applicant’s criminal background until after the initial interview has been completed or a conditional offer has been extended to the applicant.
Legislators believe that this Act provides many social benefits, including greater productivity of individuals in the state. Additionally, they realize the limitations that are part of commercial background checks, citing that many of these checks have inaccuracies. Additionally, background checks are becoming more common with the progression of time, so adverse information in these reports affects more individuals. However, it has been long determined that these reports have a disproportionate effect on minorities. Additionally, legislators cite research that shows that many people with criminal histories do not pose a greater risk of criminal behavior than people who do not have prior criminal histories. For those individuals who are employed after convictions, the risk of recidivism is reduced.
When Can Employers Conduct a Background Check
The act will serve as a way for employers to be deterred from using language that explicitly precludes or attempts to dissuade people from applying for open positions based on their criminal histories. For affected employers, no pre-application inquiry can be made. An employer may conduct an inquiry after he or she has extended a conditional job offer to the candidate. Then, the employer must provide the applicant with written notification that he or she will conduct a criminal history inquiry. The applicant will receive a notice of rights. The employer must get the applicant’s consent before conducting the inquiry.
The employer is able to consider several crimes in connection with a decision regarding the employment of the applicant. For example, the employer can consider convictions for murder, attempted murder, arson, sex offenses that require the registration of the applicant as a sex offender and terrorism. Additionally, an employer can consider convictions for crimes in the first to fourth degree for ten years after the person was released from custody, disorderly persons offenses for five years after the release from custody or the date of sentencing if the applicant was not imprisoned and any criminal charges that are pending at the time of the application until the charges are resolved.
Discussion Between Applicant and Employer
Once the employer receives the report, he or she must discuss the results with the applicant if anything in the criminal history concerns the employer. The employer may consider the criminal history to determine whether the applicant will be suitable for the position. The law requires the employer to make a good faith effort in discussing this information with the applicant. Additionally, the applicant must be given the opportunity to explain the crime and put it in the proper context. Additionally, the applicant can give the potential employer evidence that he or she has rehabilitated and can rebut any inaccuracies in the report.
If the employer concludes that the applicant is not suitable, he or she must provide the applicant with written notification of the adverse employment decision, the results of the criminal history check, a statutory form showing the consideration of the criminal history information and a notice of rights. After receiving this information, the applicant can provide more information and evidence to the potential employer within ten business days of the receipt of notice. The applicant can provide information to the employer related to his or her rehabilitation and good conduct, including a certificate of rehabilitation that a state or federal agency has issued. Additionally, the applicant can present evidence regarding the accuracy of the criminal record, the amount of time between the offense and the current date to show no recidivism has occurred and the nature and circumstances regarding the crime and how these may affect the applicant in the position that he or she is seeking. The employer has the option to keep the position open for the applicant, but he or she is not required to wait for a response before giving someone else the position.
Which Employers Are Covered?
The Act does not apply to employment decisions that are regulated under federal or state law and require or permit the consideration of an applicant’s criminal history for employment purposes. Additionally, the act does not apply to positions in which there is a federal or state law that prohibits individuals with certain criminal history from obtaining certain employment so long as this exemption is limited to the specific offenses that other laws provide for. Additionally, the act defines “employer” as someone or something that has at least five employees. Therefore, employers of four or fewer employees would not have to comply with the terms of the new law.
Employer Penalties for Not Complying
Employers who do not comply with the terms of the new law may be fined. Fines range in value from $500 to $7,500, depending on how many employees the employer has and whether the employer has previously violated the terms of the law. Employers who exclude certain criminal history information from consideration under this law shall not be found liable for negligent hiring simply for this exclusion.
Individuals who believe that a potential employer has violated the terms of the new law may wish to discuss their case with an employment law attorney. He or she may be able to explain how the new law will operate and the relief that it may be able to provide.
To check if you are eligible to clear your New Jersey criminal record you can take this free online eligibility test.