New Jersey Passes New Regulations to its Ban the Box Law | DCR Workforce Blog

New Jersey Passes New Regulations to its Ban the Box Law

ban the box law

The New Jersey Department of Labor and Workforce Development has issued regulations, which prohibit employers from inquiring about a job applicant’s criminal history during the initial interview process, with immediate effect.  When an employer accepts employment applications in New Jersey, conducts business in the state, or employs individuals in the state then it is subject to the Ban the Box Law. The law applies to companies with 15 or more employees over 20 calendar weeks, whether or not those 15 employees work in New Jersey. While employment covers any occupation, vocation, job, or work with pay, including temporary or seasonal work, contingent work, and work through the services of a temporary or other employment agency; any form of vocational apprenticeship; or any internship. The term “Employer” also covers job placement and referral agencies and other employment agencies. Under the law, employers in New Jersey cannot obtain a credit report or require an existing or prospective employee’s consent to obtain one. The Act’s prohibitions apply to nearly every position at a company, even when employees perform work primarily out-of-state, but exempts independent contractors and domestic employees.

The regulations set parameters which define the application process for employment.  They consider a first interview to be “any live direct contact by the employer with the applicant (not only on person but also by phone or over a video conference) to discuss the employment being sought to the applicant’s qualifications”, and do not expect it to be a personal, face-to-face meeting. Once the initial employment application process is complete, the employer may proceed to make inquiries about the applicant’s criminal history. When using an application form which has multi-state use, the employer must state that applicants physically located in New Jersey need not answer any question which enquires into their criminal history.

Exceptions would always be there to every rule and this law also allows credit checks to be undertaken under certain conditions, such as:

  • When the law requires the employer to obtain one.
  • When the employer has reasonable cause to believe that the employee had engaged in a specific activity that was financial in nature and constituted a violation of law; as when an applicant voluntarily discloses information regarding his or her previous criminal record.
  • The bill would also allow an employer to obtain a credit report when credit history constituted an occupational qualification for that particular position. Below are some positions for which it would be a qualification:
    • Managerial positions involving the financial direction or control of the business,
    • Positions which involve access to customers’ or employees’ personal belongings or financial assets (other than routine retail transactions),
    • Positions requiring fiduciary responsibility to the employer,
    • Positions which have an expense account for travel, or
    • Positions in law enforcement or governmental or non-governmental security.

Employers who violate the bill could face civil suits and damages which are compensatory and consequential; injunctive relief, and attorneys’ fees, as well as civil penalties which do not exceed $2,000 for a first violation and $5,000 for every subsequent violation.

Avoid Discrimination at the Workplace:

A movement to ban inquiries into the criminal history of workers has inspired 60 cities and 13 states in America to pass laws which make it illegal to conduct criminal background checks and credit checks. Each of these laws is unique in its approach to the protections offered and the questions banned. These laws are applicable to not just public employers, but private employers too. Even if a background check is needed, employers are required to make it the last step in the recruitment process, right before the offer is made. They can also make an offer, which is contingent upon the background check being clean of any misdeed in the past. The employers must remember to stay compliant with the local laws as well as the Equal Employment Opportunity Commission’s directives in the matter of background checks.

To meet this challenging goal, employers will need to:

  • Train their hiring teams on the applicable laws and also ensure that no inquiries are made until after the job interview is completed
  • Review job application and hiring processes, both online and offline, to ensure compliance with the local laws.
  • Discuss the Ban the Box regulations with any background check provider they employ, to ensure that they are obtaining only the information which is legally permitted to be obtained during a hiring process. Create a buffer, using contractual terms, which protects them from any violations resulting from the service provider’s mistakes.
  • Remember that any acts of omission or commission in conducting background could hurt the interests of the business and/or result in liability for failing to protect or ensure the safety of their customers and employees as with the recent allegations against com.

Erring employers may find themselves facing a civil penalty not exceeding $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation.

Have you banned the box? Or, do you prefer to pay the penalty than take the risk of hiring someone with a criminal record, even for jobs that do not come under the exempted category? Please share your views.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.