On December 7, 2015, the New Jersey Department of Labor and Workforce Development (the “NJDOL”) promulgated a set of regulations to enforce and more specifically define the restrictions contained in the State's "Opportunity to Compete Act." Governor Chris Christie of New Jersey signed the Act on August 11, 2014, following the lead of a handful of other states by requiring employers to remove criminal-convictions questions from job applications and defer background inquiries until the conclusion of the “initial application process”. While the Act went into effect on March 1, 2015, the NJDOL's new rules are the first issued. Among other important aspects, the NJDOLs new regulations define a first interview as any "live, direct contact” between the employer and applicant, whether by telephone, video conferencing, or in person.
The Act prohibits New Jersey employers from making any inquiry concerning an applicant’s arrest or criminal record beginning from the employer’s first contact with the applicant concerning the prospective employment position or job vacancy, and ending when an employer has conducted a first interview. Such searches are permitted if the employment sought or being considered is for a position in law enforcement, corrections, the judiciary, homeland security or emergency management, or where a criminal history record background check is required by existing law, rule, or regulation.
In addition to defining a "first interview," the NJDOL also clarified that the Act construes “inquires” very broadly and prohibits searches of publicly available records, including Internet searches. The Act also prohibits an employer from hiring a third party to conduct a background check of the applicant or prospective employee.
After the conclusion of the initial application process, an employer is permitted to ask about an applicant’s criminal history and to conduct a background check, as is permissible with any other applicant. This significantly differs from New York City’s Ban the Box Law, however, where employers must extend an applicant a formal offer prior to inquiring into the applicant’s criminal record.
The employer may also refuse to hire the applicant based on his or her criminal record, “unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon”. This is in stark contrast to the recently enacted New York City Ban the Box Law, as the New York City Human Rights Law prohibits discrimination on an employee’s or applicant’s criminal record. The New Jersey Law Against Discrimination contains no such restriction.
Any employer who violates the Act may be liable for up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.
