NJ Adopts Final Regulations on Criminal Background Inquiries
New Jersey has promulgated its final ban-the-box regulations, clarifying the law passed on March 1, 2015, which severely restricted public and private employers with 15 or more employees from inquiring into an applicant’s criminal background at the beginning of the hiring process.
Under the law, employers cannot ask about an applicant’s criminal history on the job application and during the first interview with the applicant. The law also prohibits employers from posting or advertising that a position requires a clean criminal record, unless such a requirement is mandated by law. Importantly, the law does not apply to positions where another law requires a criminal background check or if the job is predicated upon a specific criminal background history.
Important questions addressed in the final regulations include:
• Which Employers are Covered By the Law? The regulations provide that Employers who employ 15 or more employees for 20 calendar weeks. It doesn’t matter if you are a private or public (except for federal) employee. It also doesn’t matter if not all 15 employees work in New Jersey.
• Which Applicants are Covered by the Law? Prospective employees are covered, as well as paid or unpaid “interns” and “apprentices.” Interns include students or recent graduates, working as a trainee to gain practical experience in an occupation. An apprentice is an individual who is registered in good standing in an apprenticeship program approved or certified by the U.S. Department of Labor’s Office of Apprenticeship.
• Are Independent Contractors Covered? No – provided that the person is properly categorized as an independent contractor and not an employee, apprentice or intern. Similarly, a company is not prohibited from inquiring into the criminal backgrounds of employees employed by temporary staffing agencies assigned to work at the company as long as such employee is not employed by the company. However, applicants referred by a recruiting firm are covered where they are referred with the intent of becoming an employee of the company. Therefore, companies can’t circumvent the law by outsourcing their employment process to a third party.
• What is an Interview? The regulations define an interview as “any live, direct contact by the employer with the applicant” to discuss the employment being sought or the applicant’s qualifications. This includes contact in person, by telephone or video conferencing, but does not include an exchange of emails or the completion of a written or electronic questionnaire. Once this first interview is complete, the prohibition on criminal background inquiries has ended under this particular law.
• What if the Applicant Volunteers Criminal Information? If an applicant volunteers criminal information, then the door is opened for the employer to inquire further into the criminal background of the applicant.
• What if I Use the Same Application for All States? Under the regulations, the employer can continue to ask criminal background questions on the application – provided that the application contains this disclaimer right after the question: “an applicant for a position the physical location of which will be in whole, or substantial part, in New Jersey is instructed not to answer this question.”
• Are Drunk Driving and Other Motor Vehicle Violations Covered? Yes, the regulations treat DWI/DUI and motor vehicle violation inquiries the same as criminal background inquires, and therefore, are prohibited until after the first interview.
• Are Internet Searches or Public Record Searches Criminal Record Inquiries? The regulations say YES. So before you Google an applicant’s criminal history, or have a third party do it on your behalf, make sure you have completed the first interview.
• When Can I Inquire About Criminal Histories? You can conduct criminal history inquiries after completing a first interview. However, the law does not apply where another law disqualifies an applicant from the job because of a criminal conviction.
• Do I Have to Hire Someone with a Criminal Record? This specific law does not prevent employers from refusing to hire applicants with criminal histories. However, federal and state anti-discrimination laws as well other laws, such as the Fair Credit Reporting Act, could come into play when the decision not to hire is based on a criminal history.
What Employers Should Do
Covered employers should modify their applications and recruitment policies and practices to ensure compliance with the law. Employers also should be aware that even though the law does not prohibit an employer from refusing to hire an applicant with a criminal background, other federal and state laws may prohibit such a bright line practice in many circumstances.
For more information regarding this or other labor and employment issues, please contact Michael J. Wietrzychowski, Co-Chair of Schnader’s Labor and Employment Practices Group.
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