New Jersey Department of Labor Issues Regulations Implementing “Ban the Box” Law

A criminal record of any kind can be a serious impediment to finding a job. Many employers have policies excluding anyone with a felony conviction record, or even a misdemeanor record, from employment, regardless of whether it has any bearing on the job in question. “Ban the Box” (BTB) laws are intended to help people who might be qualified for a job but are unable to find work because of a criminal record. New Jersey passed the Opportunity to Compete Act (OCA), P.L. 2014 ch. 32, in June 2014. It took effect on March 1, 2015. The New Jersey Department of Labor and Workforce Development (LWD) issued new regulations implementing the law in December. 47 N.J.R. 3034(a) (Dec. 7, 2015).

By Laurent Sutterlity (The Noun Project) [CC0], via Wikimedia CommonsNumerous cities and states around the country have enacted BTB laws. The “box” in question refers to the checkbox on many job applications asking whether the applicant has a criminal record indicating one or more arrests, charges, or convictions. At a minimum, BTB laws prohibit employers from asking about criminal history during the initial stage of the job application process. Some laws go much further, such as New York City’s broad prohibition on employment discrimination based on criminal history. See N.Y.C. Admin. Code §§ 8-107(9) – (11-b).

In New Jersey, the OCA does not extend as far as New York City’s law, but it still provides several important protections. During the “initial employment application process,” employers may not inquire about an applicant’s’ criminal history, either verbally or in writing, nor may they require an applicant to provide such information in any other form. N.J. Rev. Stat. § 34:6B-14. Advertisements for job openings cannot state that an employer will not consider applicants with criminal histories. Id. at § 34:6B-15.

Exceptions to both of these prohibitions apply if the position in question is in “law enforcement, corrections, the judiciary, homeland security or emergency management.” Id. at §§ 34:6B-15, 34:6B-16(a). The prohibition on inquiries about criminal history does not apply if a criminal background check is otherwise required by law. This includes jobs that preclude people with criminal records, such as child care, and jobs within a “a program or systematic effort…to encourage the employment of persons” with criminal records. Id. at §§ 34:6B-16(b), (c).

The OCA prescribes penalties for violations and states that these are the sole remedies allowed. In other words, individuals may not bring a private cause of action for violations of the OCA. The penalty for a first violation is a fine of up to $1,000, payable to LWD. The fine for a second violation could be up to $5,000, followed by a maximum of $10,000 for a third or subsequent violation.

The new LWD regulations, found at N.J.A.C. 12:68, establish the definitions of various terms, provide more detail on what constitutes a violation and what is exempt from the OCA, and describe considerations for penalties and appeals. When assessing a penalty, LWD should consider factors like “the seriousness of the violation,” the employer’s history of violations, the employer’s size, and whether the employer acted in “good faith.” N.J.A.C. § 12:68-1.5.

The Resnick Law Group’s employment discrimination lawyers advocate for the rights of employees, former employees, and job seekers in New Jersey, helping them assert claims for unlawful employment practices under federal and state laws. To schedule a confidential consultation to discuss your case, contact us today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

City Ordinances Limit Employers’ Ability to Refuse to Hire Applicants Based on Criminal History, The New Jersey Employment Law Firm Blog, September 10, 2014

Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court, The New Jersey Employment Law Firm Blog, May 13, 2014

New Jersey Company Settles With New York Attorney General’s Office Over Alleged Discrimination Against Applicants With a Criminal History, The New Jersey Employment Law Firm Blog, June 3, 2013

Photo credit: Laurent Sutterlity (The Noun Project) [CC0], via Wikimedia Commons.

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