New Law on Employee Background Checks On August 11, 2014 Governor Christie signed what proponents have called Ban the Box legislation (A-1999/S-2124), which places new restrictions on background checks conducted by employers with 15 or more employees during the hiring process. The phrase Ban the Box was derived from removing the box and the corresponding question on employment applications that required applicants to disclose their criminal backgrounds. The New Jersey Business & Industry Association (NJBIA) did not oppose a simple Ban the Box law. However, versions of the bill that were introduced in the Legislature went much further, prohibiting employers from asking about a criminal background until after a conditional offer had been made, placing onerous and costly requirements on employers, as well as increasing employer liability. NJBIA fought these types of bills for two years, protecting the interests of our members. Even so, it became clear that a new Ban the Box bill would get to the Governors desk this past June, and NJBIA did everything possible to make the bill less intrusive and burdensome for employers in the hiring process. We were able to get very small employers exempted, which is consistent with federal law. We limited the legal liability for employers. We eliminated complicated requirements for different types of crimes. We eliminated a provision that would have required employers to explain, in writing, why an ex-offender was not hired. And, we made sure that any state law would supersede county or local ordinances, eliminating the possibility of a patchwork of different requirements throughout the state. The result of our hard work is a much more palatable bill. While we do not support the bill, we recognize the willingness of the sponsor to make changes that addressed NJBIAs concerns. The new law will take effect on March 1, 2015. The key provisions are outlined below, and an accompanying Fast Facts providing greater detail, can be found here. What You Need to Know 1. Businesses with fewer than 15 employees are exempt. The law impacts only businesses with 15 or more employees. 2. Covered employers cannot make oral or written inquiry into an applicants criminal record until after the initial employment application process ending when an employer has conducted a first interview. The first interview can be in person or by any other means, which gives employers flexibility. 3. Covered employers can no longer have a box and an associated question asking about an applicants criminal history on an employment application. 4. There are exemptions for law enforcement, corrections, the judiciary, homeland security or emergency management jobs, or where the employer is seeking to employ those who have criminal records. 5. Exemptions also apply when: a. a criminal history record background check is required by law, rule or regulation; b. an arrest or conviction by the applicant 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; or c. any law, rule, or regulation restricts an employers ability to engage in specified business activities based on the criminal records of its employees. 6. Voluntary disclosure is covered in the bill. Employers may make inquiries once criminal background information is volunteered, and will not face legal liability for doing so. 7. Protections are in place for employers should they decide not to hire the person after they obtain information about a criminal record. Prior versions of the bill required employers to explain, in writing, why the ex-offender was not hired. 8. The preemption language is clear: No municipality may adopt an ordinance, rule, resolution or regulation regarding criminal histories in the employment process. That means that this is the statewide standard and towns cannot mandate a different standard. 9. There is no civil cause of action AND there is very strong language that protects employers from lawsuits if a person attempts to sue an employer under other statutes utilizing evidence of a violation of this act. Civil penalties are the sole remedy. 10. The law takes effect March 1, 2015.
Posted on: Tue, 12 Aug 2014 21:04:31 +0000
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