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Friday, January 9, 2015

NJ Ban the Box Effective 3/1/15: What You Need to Know

By: Peter J. Lamont, Esq. 

New Jersey Employers - Its time to start preparing for the implementation of New Jersey's “ban the box” law, which goes into effect on March 1, 2015. Here is what you need to know:

Who Does the Act Apply To? 
Ban the Box ("BTB") applies to employers with 15 or more employees (anywhere) that either (1) do business  (2) employ persons, or (3) take applications for employment in New Jersey. The Act does not apply to employers with less than 15 employees. 

Does BTB Prevent or Prohibit Employers from Ever Asking an Applicant About their Criminal Record?
No.  The BTB law only limits when during the hiring process an employer can ask about the applicant's criminal record.

At What Point During the Hiring Process Can an Employer Ask an Applicant About their Criminal History?
Basically, an employer cannot inquire, either verbally or in writing, about an applicant's criminal background until after he/she has conducted an initial interview with the applicant. 

Does an Initial Interview Have to Take Place in Person?
The BTB law is somewhat vague when discussing the initial interview. However, the law states that the initial interview may be conducted "in person or by any other means."  This language seems to suggest that video and/or telephone interviews may qualify as an initial interview. 

How Soon After the Initial Interview can an Employer Inquire About an Applicant's Criminal History?
There is no definitive statement in the law explaining when an inquiry can be made.  The purpose of the law is to allow individuals with criminal backgrounds a fair and equal opportunity to find gainful employment. Thus, so long as an employer institutes a procedure where a determination is made about whether the applicant meets the minimum threshold for the position before a criminal history is obtained, an inquiry can be made as the next step.  

When Does the Law Go into Effect?
BTB goes into effect on March 1, 2015.

What are the Penalties for Violating the BTB Act?
If an employer violates the BTB law he/she/it is subject to civil penalties per violation in the amount of $1,000 for the first violation, $5,000 for the second and $10,000 for all subsequent violations.   

Can an Applicant or Employee Sue an Employer for BTB Law Violations?
Not directly. The law does not provide or create a private cause of action.  Thus, an employer can only be liable for the statutory penalties listed above. 

Are There Any Exceptions to the BTB Act?
Yes. An employer can inquire about criminal history when the applicant is seeking a position in law enforcement, corrections, the judiciary, homeland security, or emergency management. Other exceptions include positions where is criminal background check is required by law or where the position is designated by an employer to be for an individual who has a criminal background. 

What Should Employers Do to Prepare?

  • Employers should remove all criminal history inquires from any job applications, whether on paper or in digital format.
  • Train everyone involved in the hiring or screening process within your company about the BTB law and its requirements and restrictions. 
  • Do not inquire about an applicant's criminal history until after the completion of the initial interview. 
  • Make sure that none of your company's print or online job postings state that the applicant must not possess a criminal history. 

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
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