New Jersey Ban the Box Law Affects Most Private Employers
Author: David B. Weisenfeld, XpertHR Legal Editor
March 3, 2015
Effective March 1, New Jersey has banned criminal history questions on job applications for most private employers as well as employment agencies. The Opportunity to Compete Act prohibits employers with 15 or more employees over 20 calendar weeks from making any oral or written inquiry about an applicant's criminal record until after the employer has conducted a first job interview.
The Act also is known as a "ban the box" law in reference to eliminating the box on job applications that prospective employees often are asked to check off if they have ever been convicted of a crime. In all, 14 states have enacted "ban the box" laws but New Jersey is just the sixth to have its measure apply to the private employment sector.
The New Jersey law also bans an employer from posting job advertisements stating that it will not consider for employment those applicants who have been arrested or convicted of a crime. In addition, it includes stiff penalty provisions of:
- Up to $1,000 for the first violation;
- $5,000 for the second violation; and
- $10,000 for each subsequent violation.
However, the New Jersey "ban the box" measure does not provide a private right of action for aggrieved applicants. The measure also provides limited exemptions for positions in law enforcement, corrections, the judiciary or emergency management. And, an employer may ask follow-up questions if an applicant voluntarily discloses criminal history information during the initial application process.
The new law provides consistency for employers as it explicitly preempts any ordinance adopted by a county or municipality that conflicts in any way with the statewide measure. This means a 2012 City of Newark "ban the box" law is now preempted. That law applied to employers with five or more employees and restricted employers from conducting a criminal background check prior to making a conditional job offer.
Other states that have enacted "ban the box" laws affecting private employers include Hawaii, Illinois, Massachusetts, Minnesota and Rhode Island. Meanwhile, more than 90 municipalities have restricted criminal history questions on application forms.
The rationale behind these laws is to give rehabilitated ex-offenders a chance to prove their qualifications in an interview setting and to avoid disproportionately affecting minority applicants.