On February 7, 2013, three New Jersey Senators introduced "The Opportunity to Compete Act," which would eliminate the check box that requires job applicants to disclose their criminal history and would also prohibit advertisements discouraging those with criminal records from applying.
If passed, an employer could only consider a job applicant's
criminal history after the employer makes a conditional offer of
employment. After extending a conditional offer, employers may
consider convictions for murder, arson, sex offense requiring
registration, and terrorism, as well as any pending criminal
charges. Employers may not consider:
- convictions for most crimes of the first through fourth degree for which an applicant was released from custody over ten years ago;
- any arrest or accusation that did not result in a conviction;
- any record that has been erased, expunged, or sealed;
- any juvenile delinquency adjudications; or
- any violations of municipal ordinances.
Before deciding to rescind a conditional offer, the law would
require employers to consider mitigating factors, such as any
evidence of the applicant's rehabilitation, the accuracy of the
records, the amount of time since the candidate's release from
custody, and the nature and circumstances of the crime.
If an employer makes an adverse decision based on information from
a candidate's criminal history, the bill requires the employer
to send the applicant written notice of the decision, a copy of the
results of the background check, a completed "Applicant
Criminal Record Consideration Form" (provided by the statute),
and a "Notice of Rights" (also provided by the
statute).
The bill gives the candidate ten business days to appeal the
rejection but does not require the employer to hold the position
for the candidate during that time. If the position is still open,
however, the employer must consider any additional information the
candidate provides.
Employers who violate the bill could be subject to civil
penalties.
"Ban the box" laws are becoming more common. Employers
should keep abreast of new developments to ensure that they are
complying with these new laws in each jurisdiction where they
operate. Employers who have questions about this proposed
legislation should consult counsel for assistance.
Originally published on the Employer's Law Blog
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