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How New Jersey Protects Against Discrimination on the Basis of Criminal History

Criminal background checks are increasingly common in the hiring process. They often present a major stumbling block for people who are trying to put their lives together after a criminal conviction. Many employers simply refuse to hire anyone with a felony record, regardless of whether the offense has any relation to the job a person is seeking. Employment laws in New Jersey and other states are trying to rectify the situation. The New Jersey Legislature passed the Opportunity to Compete Act (OTCA) in 2014. Federal law does not include specific protections against discrimination based on criminal history, but several provisions of federal law can indirectly affect how employers conduct background checks on job applicants.

When it passed the OTCA, the state legislature recognized the importance of “[r]emoving obstacles to employment for people with criminal records.” It found that as many as 65 million people nationwide faced difficulty finding jobs because of their criminal records, and that up to ninety percent of employers use criminal background checks to some extent during the hiring process. Since having a job “significantly reduces the risk of recidivism” for people with criminal histories, the state legislature concluded that it had to act. The OTCA does not go as far as many similar laws, but it is a step in the right direction.

The OTCA is part of a group of laws passed by state and local governments around the country known as “Ban the Box” laws. The OTCA prohibits employers from asking New Jersey job applicants about criminal history at the beginning of the hiring process. The “box” refers to the “yes/no” checkbox found on many job application forms asking whether someone has ever been convicted of a criminal offense. Checking the box, which indicates that an applicant has one or more convictions, has often resulted in the application going directly into employers’ “rejected” piles.

Employers in New Jersey may not ask job applicants about whether or not they have criminal history until after they have completed the “initial employment application process.” The OTCA defines this as the phase of the process that begins with an initial inquiry about employment and ends after the employer has interviewed an applicant for the first time. After that, state law allows employers to ask about criminal history. It only prohibits adverse decisions based on criminal history when those records have been expunged or the applicant has received a pardon.

Unfortunately, the OTCA does not allow job applicants to file suit for alleged violations. The only remedies provided by the statute are civil fines, payable to the state, of $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each violation after that.

At the federal level, two statutes indirectly provide some protection with regard to employers’ use of criminal history in hiring decisions. The Fair Credit Reporting Act regulates how employers may use job applicants’ credit reports, which often include criminal history. Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of factors like race and national origin. If an employer’s policies or practices regarding criminal history result in patterns that discriminate on any of those bases, then there could be a cause of action.

The employment lawyers at the Resnick Law Group advocate for the rights of New Jersey and New York workers in claims for unlawful practices like discrimination and harassment. 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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