New Jersey Promulgates Final Regulations to “Ban the Box” Legislation

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On December 7, 2015, the New Jersey Department of Labor and Workforce Development issued final regulations to the Opportunity to Compete Act (the “Act”), commonly known as the “Ban the Box” legislation.  The Act, which has been in effect since March 1, 2015, restricts covered employers from inquiring orally or in writing into the criminal record of an applicant during the “initial employment application process.”  The regulations provide important guidance to the meaning and scope of the Act.

To begin, the regulations clarify the definition of “employer” (as used in the Act) to be a person or entity that “has 15 or more employees over 20 calendar weeks, whether those employees work inside or outside of New Jersey, and does business, employs persons, or takes applications for employment within this State.”  Under that definition, an employer with less than 15 employees in New Jersey must still comply with the Act if the employer has 15 or more employees in total.  The regulations also note that interns and apprentices are included within the scope of the Act, and they provide definitions for both terms.

Employers that employ individuals in multiple states may use an employment application that includes an inquiry regarding the applicant’s criminal records, so long as the question instructs prospective New Jersey employees to not answer the question.  Applications, furthermore, may include a statement indicating that the applicant may later be subject to a criminal background check as a condition of employment.

Moreover, the regulations explain that prior to completing an initial interview, an employer may not conduct an independent or third-party criminal background check of the applicant or conduct an internet or other public record search containing the applicant’s criminal background.  Pursuant to the regulations, doing so prior to the initial interview constitutes an impermissible “written inquiry” into the applicant’s criminal record.

The regulations clarify that if an applicant is scheduled for multiple interviews with an employer on the same day, then the “initial employment application process” has concluded once the first of those interviews is complete.  During or after subsequent interviews that day, the employer is free to ask the applicant about his or her criminal record.  The regulations also state that an “interview” requires live and direct contact with the applicant, such as in person, telephonic, or live video communications; the mere exchange of emails or the completion of a written electronic questionnaire by the applicant does not constitute an “interview” under the Act.  

For assistance in complying with the Act and its new regulations, please contact Connell Foley’s labor and employment law attorneys.