January 25th, 2018 | Debbie Lamb, Sterling Talent Solutions

New Jersey Amends Ban the Box Law, with Expunged Criminal History

The New Year brought many changes to laws that have an impact on the background screening industry from the legalization of recreational marijuana use in California to the enactment of ban the box laws in cities and states across the country. There are many city and state employment regulations that are set to take effect in 2018 including salary history, equal pay, paid sick time and family leave laws. Some municipalities are updating their ban the box laws to be more restrictive. As of January 1^st, California enacted strict guidelines to their ban the box law to include private sector jobs. New Jersey has updated their ban the box law prohibiting employers from inquiring into an applicant’s expunged criminal history.

What are Ban the Box Laws?

With the start of 2018, over 150 cities, municipalities or counties have banned the box for public and/or private employees. Ten states have ban the box laws for both private and public employees and 29 cities and counties have ban the box laws for public employees and certain contractors.

Ban the box laws prohibit employers from inquiring about prior criminal convictions until at a later point in the hiring process. The laws make it illegal to include a checkbox on a job application asking about criminal history. These laws prevent companies from asking about a job applicant’s criminal history on an application and in some cases during an interview. The criminal history questions can be asked later in the hiring process, such as after an offer is made to the applicant and can be investigated, with the consent of the applicant, during a background screening check. The ban the box law is intended to promote evaluating applicants based on their qualifications instead of automatically disqualifying convicted criminals.

Current New Jersey Ban the Box Law

New Jersey enacted the New Jersey Opportunity to Compete Act, (commonly known as the ban the box law) in March 2015. The law states that organizations which have 15 or more employees may not ask applicants about their criminal history records until after the initial stages of the employment process, specifically the interview. The New Jersey Opportunity to Compete Act also prohibits companies from publishing employment advertisements stating that the company will not consider a candidate who has been arrested for or convicted of a crime.

The ban the box law does state that there are positions that are exempt from the ban the box requirement including:

• A criminal history record background check is required by law, rule or regulation
• An arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule or regulation
• Any law, rule or regulation restricts an employer’s ability to engage in specific business activities based on the criminal records of its employees

Update to New Jersey Ban the Box Law

At the end of the year, Chris Christie, now former governor of New Jersey, signed into law an update to the state’s current ban the box program that focuses on an applicant’s expunged criminal history. New Jersey Senate Bill 3300 prohibits employers from:

• Requiring new Jersey applicants to complete an employment application that includes inquiries into that individual’s expunged criminal history
• Making any written or oral inquiries into a New Jersey applicant’s expunged criminal record during the initial employment application process
• Mandates that an employer may not use an online application that requires the disclosure of an applicant’s criminal record, including an expunged criminal record during the initial application process.

Ban the Box Laws Impact on Employers

Even though the New Jersey ban the box law has been in effect since 2015, organizations in the stateshould look at that job applications and hiring procedures to make sure references to criminal background checks are properly removed according to the new requirements. It is crucial for companies to be aware of the specific hiring regulations in their city, county and state. Even more important is that companies should act to comply with the regulations by talking to legal counsel and having a third-party employee screening company that is up-to-date on the ban the box laws.

Sterling is here to help with your background screening and new hire onboarding needs. Check out the compliance page on our website for the latest decisions that affect the employment background screening industry. For further information about background screening, download our Background Screening 101 eBook.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.