Applicant’s Criminal Record Only Available After Initial Employment Process

On March 1, 2015, New Jersey’s Opportunity to Compete Act goes into effect.  This law applies  to employers with 15 or more employees for over 20 calendar weeks (including the State of New Jersey, its counties and municipalities).  Employers are exempt from this law if they have less than 15 employees – or – by law, the applicant cannot have a prior conviction or arrest – or – hiring an individual with a criminal history would restrict the employer from specific business activities.  Also excluded are positions in law enforcement, corrections, the judiciary, homeland security, or emergency management.

If covered by this law, employers cannot ask about an applicant’s criminal record until the “initial employment application process” is completed, meaning the employer has (1) conducted an interview; (2) decided that the applicant is qualified for the job; and (3) decided the applicant is its first choice for the job.  This law does NOT apply if the applicant voluntarily discloses his/her criminal record during this “initial process.”  In such a case, the employer is permitted to make a reasonable, but limited inquiry into the criminal history disclosed.

After the “initial process” ends, the employer can ask about and consider the applicant’s criminal history, but cannot ask about expunged criminal records, arrests for which there was no conviction, disorderly conduct convictions over 5 years old and convictions of 4th degree crimes over 10 years old.  The employer also cannot advertise that applicants who have been arrested or convicted will not be considered.

This law supersedes any similar restrictions set forth by counties or municipalities.  However, an individual cannot sue under this law.  Actions are brought by the Commissioner of Labor and Workforce Development and any fines ($1,000 for first offense; $5,000 for the second offense; and $10,000 for subsequent offenses) are payable to the Commissioner.