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On August 11, 2014, Governor Christie signed into law the Opportunity to Compete Act.  The law also referred to as “Ban the Box legislation,” has implications for employers and their ability to ask job applicants about their criminal history.  According to the newly enacted statute, the law is intended “to improve the economic viability, health, and security of New Jersey communities and to assist people with criminal records to reintegrate into the community, become productive members of the workforce, and to provide for their families and themselves.”  The law has several important provisions applicable to employers.  They include:

  1. Prohibiting employers from requiring an applicant to complete a job application or make inquiries into an applicant’s criminal history during the initial employment application process.  The initial employment application process is the period when the applicant first makes an inquiry about the position and ends when the employer conducts a first interview and has determined that the applicant is qualified and is the employer’s first choice to fill the position.
  1. Allowing employers to inquire about an applicant’s criminal history after the initial employment application process has terminated unless the criminal conviction was expunged or qualifies for another specified exception that allows the applicant to conceal the conviction.
  1.  Prevents employers from publishing job advertisements that states that the applicant will not consider an applicant who has been convicted of one or more crimes.  This provision however does not apply if the position is in law enforcement, corrections, the judiciary, homeland security, emergency management or in another position that requires a criminal background check by law.
  1. Employers cannot be held liable for negligent hiring or negligent retention claims based upon failing to conduct a criminal background check, unless the hiring decision was grossly negligent.
  1. There is no private right action under the law and the Commissioner of Labor and Workforce Development is solely authorized to issue civil penalties for violations under the law.  The penalty for a first violation is $1,000, $5,000 for a second violation and $10,000 for each subsequent violation.

It is important to note that the provisions of the Opportunity to Compete Act only apply to employers that have 15 or more employees over 20 calendar weeks a year.  Additionally, the prohibition on asking applicants about their criminal history does not apply if the job naturally requires a criminal background check, such as jobs in law enforcement, corrections, the judiciary, homeland security and emergency management.

Employers subject to the Opportunity to Compete Act must be aware of the Act’s requirements and revise advertisement materials and interview questionnaires to reflect the law’s requirements.

About the author: Andrew P. Bolson, Esq. is an attorney with Meyerson, Fox, Mancinelli & Conte, P.A. in Montvale, New Jersey. Andrew’s practice focuses on commercial and estate litigation, business law, real estate law, estate planning and privacy and Internet law.