Employer Discrimination Against Individuals with a Criminal Record

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Employer Discrimination Against Individuals with a Criminal Record

“Have you ever been convicted of a crime?” Traditionally, employers ask this question on job applications to screen out applicants. Checking the “yes” box in response to this typical question could result in disqualification from the hiring process even before an interview. Early this year, the New Jersey Legislature introduced a bill titled the Opportunity to Compete Act that would significantly restrict criminal background checks during the hiring process. Commonly referred to as the “Ban the Box,” the measure, if passed, would allow employers to inquire about an applicant’s criminal history only after making a conditional offer of employment.

State Senator Sandra Cunningham has been in negotiations with Governor Chris Christie over the bill and expects that it will be passed by both houses of the Legislature by the end of June. A new version of the bill was re-introduced in February and now has a higher likelihood of being signed into law by Gov. Christie as it includes positive changes for employers.

This bill hopes to make the hiring process fairer for all residents. Although the employer may use the same inquiry to disqualify the applicant at the interview stage, the purpose of the “Ban the Box” law is to provide applicants with the opportunity to walk through a potential employer’s doors and explain the circumstances surrounding their convictions.

Substantively, the act outlines what types of criminal history employers could consider, would not be permitted to consider, and are required to consider. It would ban companies with 15 or more employees from conducting a criminal background check or asking about applicants’ criminal history until after extending a conditional offer. Companies would also be banned from discriminating against applicants that have committed disorderly person offenses more than five years ago and felonies more than ten years ago, with the exception of more serious crimes such as murder, sex offenses, etc. Procedurally, employers would have to obtain consent from applicants and provide them with a written notice of intent to conduct a background check. Moreover, the penalties for violating the law would range from $500 to $7,500.

The removal of this question from applications could result in a conflict for employers because of negligent hiring laws that could hold employers liable if they knew or should have known of an employee’s unfitness, incompetence, or dangerous characteristics.

The Ban the Box bill would create little room for error in an employer’s hiring decision. Although the risk of hiring-based liability may increase for employers if this law is enacted, the bill will enhance employment by providing more opportunities for people who deserve redemption.

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