City Ordinances Limit Employers’ Ability to Refuse to Hire Applicants Based on Criminal History

checkbox_checked.pngAs many as one in four Americans has a criminal record that could turn up during a job search. Lack of employment opportunities is a substantial factor in the difficulty people with criminal history face, including an estimated recidivism rate of 70 percent. We, as a society, are nowhere near consensus on whether the primary purpose of our criminal justice system is punishment or rehabilitation. What seems clear, however, is that barriers preventing people with criminal records from getting jobs, particularly when an applicant’s criminal record has no rational relationship to the job in question, make reentry into society all the more difficult. Cities and states around the country, including two New Jersey cities, have enacted laws limiting when employers may ask about or consider criminal history.

The “Ban the Box” campaign promotes laws that prohibit employers from asking about criminal history during the initial phase of the job application process. The campaign’s name refers to the checkbox for criminal history found on many job applications. Federal anti-discrimination law does not expressly prohibit discrimination based on criminal history, and consideration of prior convictions might be necessary for certain jobs. The Equal Employment Opportunity Commission (EEOC) has held, however, that use of criminal history in employment decisions may violate Title VII of the Civil Rights Act of 1964 in other ways, such as if it results in disparate treatment of employees or job applicants based on race or other protected categories.

The first statewide law prohibiting employment discrimination based on criminal history was adopted in Hawaii. An employer may ask about criminal history if it “bears a rational relationship to the duties and responsibilities of the position,” but only after extending a “conditional offer of employment.” HI Rev. Stat. ยง 378-2.5. As of May 2014, 11 more states have enacted similar laws. At least 66 local jurisdictions have also enacted ban-the-box ordinances, including New Jersey’s own Newark and Atlantic City.

Newark enacted Ordinance #12-1630 (PDF file), one of the broadest ban-the-box laws in the country, on September 19, 2012. In its findings, the ordinance notes that Newark is the largest city in New Jersey and reportedly has the highest number, per capita, of parolees of any city in the country. The ordinance applies to both public and private employers, and it also affects housing and local licensing officials. Employers may not inquire about criminal history until they have made a conditional job offer, and they are limited to a period of time ranging from five to eight years prior to the date of the job offer. Advertisements limiting eligibility for employment based on criminal history are prohibited by the ordinance.

Atlantic City’s Ordinance No. 83 (PDF file) was approved by the City Council on December 7, 2011 and signed by the Mayor on December 23. It only directly applies to employment with the city, prohibiting inquiries into criminal history until after an applicant is “identified as otherwise qualified,” requiring notice to the applicant and an opportunity to respond, and identifying factors the city must consider when reviewing criminal history. It also makes comparable policies a requirement for private companies contracting with the city.

If you need to speak to an employment attorney in New Jersey or New York regarding employment discrimination or other unlawful practices, please contact the Resnick Law Group at 973-781-1204 or 646-867-7997.

More Blog Posts:

Wrongful Termination May Expose Employers to Defamation Claims, The New Jersey Employment Law Firm Blog, July 22, 2014
Investigating Employees’ Work Eligibility May Violate Anti-Discrimination Laws, Warns Justice Department, The New Jersey Employment Law Firm Blog, May 21, 2014
Lawsuit in New Jersey State Court Accuses Police Department of Sexual Harassment, Race Discrimination, and Harassment, The New Jersey Employment Law Firm Blog, March 20, 2014
Photo credit: skind [Public domain, CC0 1.0], via Openclipart.

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