Yesterday, New Jersey joined 12 other states in its enactment of the “ban-the-box” legislation whereby employers will be prohibited from asking job applicants at the outset about their criminal records. Following New Jersey Governor Chris Christie’s execution of the Opportunity to Compete Act (Act), New Jersey became the fifth state – in addition of Hawaii, Massachusetts, Minnesota and Rhode Island – to impose the “ban-the- box” prohibitions on private-sector employers. Under the Act, an employer is barred from conducting any pre-application inquiry regarding the person’s criminal history or from making such inquiries during the application process. However, an employer may consider such information should an applicant voluntarily disclose his or her criminal history during the application process. Otherwise, only after the employer determines that the candidate is otherwise qualified and has received a conditional offer of employment, may an employer make an inquiry regarding the individual’s criminal history. Assuming the conditions permitting such inquiry have been met, the employer must provide written notice of its intent to make the criminal history inquiry and the candidate must provide written consent to this inquiry after receipt of a Notice of Rights (which is outlined fully in the Act). An employer is permitted to take into consideration the following criminal history when making an employment decision:
- A conviction of murder or attempt to commit murder regardless of when the conviction occurred.
- A conviction of terrorism regardless of when the conviction occurred.
- A conviction of a crime of the first through fourth degree for 10 years following the release from custody or from the date of sentence if the person was not sentenced to a term of confinement.
- A conviction of disorderly persons offense for five years following the release from custody or from the date of sentence if the person was not sentenced to a term of confinement.
- Any pending criminal charges, which include cases that have been continued without a finding, until the case is dismissed.
- Any arrest or criminal accusation that is not pending against the person.
- Any record that has been erased or expunged.
- Any record of an executive pardon.
- Any adjudication of delinquency of a juvenile.
- Any violation of a municipal ordinance.
- Any record that has been sealed.
- Any information regarding the candidate’s rehabilitation and good conduct, including a certificate of rehabilitation issued by the state or federal agency.
- The accuracy of the criminal record in question.
- The amount of time that has lapsed since the conviction and release from custody.
- The nature and circumstances surrounding the crime and the relationship to the duties of the employment position sought.