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How New Jersey Employment Laws Protect Job Applicants During the Hiring Process, Part 2: Background Checks and Social Media

People looking for jobs in New Jersey have the protection of federal and state employment laws addressing issues like wages, overtime compensation, and workplaces that are free of discrimination and harassment. To protect job applicants’ privacy rights, New Jersey law limits how employers can conduct background checks on prospective hires, and on how they can use information obtained from an applicant’s credit or criminal history. The following is the conclusion of our two-part series about New Jersey laws that protect job applicants’ rights.

Use of Credit History in Hiring

At the federal level, the Fair Credit Reporting Act (FCRA) regulates consumer reporting agencies (CRAs), which are companies that compile information about consumers, and package that information in report form in exchange for a fee. The reports, known as consumer reports or credit reports, often include sensitive personal information that most people would rather remain private. The FCRA restricts the use of credit reports to a small number of situations, including employment.

New Jersey law largely mirrors the language of the FCRA. Under both laws, an employer needs a job applicant’s written consent in order to obtain a credit report. New Jersey goes a step further than the FCRA, however, by requiring employers to give job applicants a written disclosure stating that credit reports “commonly include[] information regarding the [applicant]’s character, general reputation, personal characteristics, and mode of living.” The employer must provide the applicant with a copy of the report upon request.

If an employer intends to take adverse action based on information in a credit report, both federal and state law require the employer to notify the applicant. They must provide the applicant with a copy of the report and written disclosure of their rights under state law and the FCRA.

Use of Criminal History in Hiring

Employers often screen out job applicants with criminal history. This can add further hardship for people who have paid their debt to society and are looking to get back on their feet. At a societal level, it benefits everyone if people with criminal history are able to obtain gainful employment. Ban-the-Box (BTB) laws bar employers from asking about criminal history in the earliest stages of the hiring process. The “box” refers to the “yes/no” checkbox on many job applications asking about criminal history.

New Jersey’s BTB law, known as the Opportunity to Compete Act, applies to employers with at least fifteen employees. They may only ask about criminal history, in writing or orally, once the applicant has completed a job interview. Employers may consider applicants’ criminal history after that point, which is at least an improvement over situations where applications with a box checked “yes” go directly in the trash.

Access to Social Media by Employers

A little over a decade ago, a city in Montana made headlines by requiring job applicants to disclose all of their social media profiles, and to provide the passwords. Numerous states moved to pass laws prohibiting employers from doing this. The New Jersey Legislature passed such a law in 2013. Employers in New Jersey cannot ask job applicants to provide a password, or any other form of access, to “a personal account through an electronic communications device.” This includes social media and email accounts.

If you have questions about a dispute with an employer in New Jersey or New York, the employment lawyers at the Resnick Law Group are available to discuss your rights and options. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to see how we can help you.

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