• New Jersey Lawmakers Introduce Their Version of ‘Ban the Box’
  • March 7, 2013
  • Law Firm: Jackson Lewis P.C. - White Plains Office
  • The “Opportunity to Compete Act,” a New Jersey Senate bill (S.2586), seeks to establish “certain employment rights for persons with criminal histories.” Citing the dramatic increase in employers’ use of criminal background checks, the bill declares that employment barriers based upon criminal backgrounds has a disproportionate effect on racial and ethnic minorities.

    The bill’s findings and requirements are similar to the Equal Employment Opportunity Commission’s Enforcement Guidance on the use of arrest and criminal conviction records in making employment decisions. The Opportunity to Compete Act, however, contains more requirements and restrictions and would have the force of law.

    As introduced, the Act:

    • Makes it unlawful to advertise that employment is contingent upon a criminal background check;
    • Precludes inquiry about an applicant’s criminal background and a background check until after an offer of employment is made;
    • Dictates whether the employer can rely on a history of certain crimes depending on the passage of time since the convictions took place;
    • Precludes the use of arrest records, unless the arrests are pending; and
    • Precludes the use of sealed or expunged records.

    In addition, the proposed law requires notification to the applicant of an adverse decision and the records used to make it and an opportunity for the applicant to respond. Perhaps the most controversial provision of the Act is a mandate for the completion of an “Applicant Criminal Records Consideration Form.” The form requires the employer who makes an adverse decision to memorialize the deliberations and explain the reasons for the adverse decision, and to supply the form to the unsuccessful applicant.

    The bill provides that violators will be subject to various civil penalties, the amounts of which will be based upon the size of the employer. If enacted in its current form, the Opportunity to Compete Act would add to the burdens of New Jersey employers, although, as currently drafted, it does not address whether a private right of action will be available, such as one for a failure to hire in violation of “public policy.”