Will New Jersey “Ban the Box?”

The “box” in question is the one on an employment application asking whether the applicant has a criminal history.  If current trends are any indication, New Jersey may soon join the ranks of state and local governments that have enacted laws limiting the ability of an employer to inquire about an applicant’s criminal history.  Currently, 50 state and local governments have such laws on the books.

Where does it apply?

Most ban-the-box laws apply only to public employers, but the trend is to laws that apply to private employers as well.  Hawaii, Massachusetts, Minnesota and Rhode Island have enacted ban-the-box laws that apply to private employers, as have Newark, Philadelphia and Seattle.  New Jersey may be poised to join them.

How does it affect employees?

Senate Bill S2586, the Opportunity to Compete Act, would eliminate inquiries into an applicant’s criminal history until after an applicant has successfully completed a screening interview and has received a conditional offer of employment.  Employers will be required to provide written notice to applicants that they may be subjected to a background check only with their written consent and advising applicants of their rights under the law.

What employers should consider?

Employers may consider convictions for:

1. murder;
2. attempted murder;
3. arson;
4. sex offenses for which an applicant has served time in state prison and is required to register as a sex offender; and
5. terrorism, without regard to when the conviction occurred.

Other convictions that occurred within a five or ten-year period (depending on the severity of the crime) may also be considered.  Employers may not consider:

1. any arrest or indictment then pending, or that has not resulted in a conviction;
2. expunged records, or any legally nullified record such as an executive pardon;
3. an adjudication of juvenile delinquency; or
4. any violation of a municipal ordinance.

The proposed legislation follows the Enforcement Guidance released by the federal Equal Employment Opportunity Commission on April 25, 2012.  As does the guidance, S2586 would require an employer to consider several factors in addition to an applicant’s criminal history, including:

1. rehabilitation efforts and good conduct;
2. the length of time that has passed since a conviction or release from custody; and
3. the circumstances of the crime and its relation to the duties of the position.

The proposed legislation will not apply when a federal or state law mandates or permits the consideration of a criminal history with respect to certain positions; for example, law enforcement positions or positions involving interactions with minors.

Conclusion

The point of ban-the-box is to facilitate entry into the job market for offenders who are otherwise qualified for the jobs they seek.  It is no secret that the inability of convicted offenders to find sustainable employment is a significant contributor to high rates of recidivism.  As drafted, S2586 appears to be a reasonable effort to address that issue.  Ban-the-box laws are the most recent manifestation of a decades-long trend of anti-discrimination legislation intended to ease entry into the job market for otherwise qualified individuals whose status may make them less desirable to employers.  Examples include laws banning discrimination on the basis of age, race, disability, religion and veteran status.

Stay tuned for further developments on ban-the-box.