New Jersey Releases Clarifying Regulations on Ban-the-Box Law

January 20, 2016

New Jersey’s “ban-the-box” law, entitled The Opportunity to Compete Act (OTCA), went into effect on March 1, 2015, with the intention of protecting job applicants with criminal records from discrimination. The New Jersey Department of Labor and Workforce Development (DOL) released final regulations to better clarify the law. Some of the more important regulations are as follows:

  • Defining an “interview”– The OTCA prohibits inquiring about an applicant’s criminal history until after the initial interview. The DOL defined an interview as “any live, direct contact by the employer with the applicant, whether in person, by telephone, or by video conferencing, to discuss the employment being sought or the applicant’s qualifications.” An employer has not conducted an interview by a mere exchange of e-mails or other electronic questioning. Immediately after the initial interview, an employer may then inquire about, and make a decision based on, the applicant’s criminal history, even if a second interview was scheduled for later that same day.

  • Restrictions on Internet searches– An Internet search regarding an applicant’s criminal history is specifically identified by the DOL to be an unlawful inquiry. The DOL is silent, however, on performing Internet searches pertaining to an applicant that are unrelated to criminal history.

  • Inclusion of out-of-state employees in the 15 employee threshold– Under the OTCA, an employer is only subject to the statute if it has 15 or more employees. The DOL clarified that it does not matter where those employees reside or work. If the employer has 15 employees anywhere, then any applicants for a position within New Jersey are protected by the statute.

  • Conditional use of standard application– For employers who inquire about criminal history on applications in other states, the employer may use the same application in New Jersey, only if it makes clear immediately preceding the inquiry that New Jersey applicants are not to respond.

The OTCA has very few exceptions, such as when an applicant would not be permitted to perform a particular job function by law if the applicant has committed certain crimes. In such a situation, the employer may inquire about any part of the applicant’s criminal history, no matter whether the questions pertain to the crimes prohibited for that position.

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