Can NJ Employers Ask Job Applicants about Their Criminal History?

Last updated March 27, 2018.

A job search can be tough even in the best of circumstances. However, in a sluggish economy, with many applicants for each open position, getting past the interview process and getting hired is more challenging than ever. For those with a criminal record, just obtaining an initial interview can be a big hurdle.

Those with criminal histories often wonder whether it is legal for prospective employers to ask them about their criminal record, and to base hiring decisions on this record.

The short answer in New Jersey is: Yes, New Jersey employers are legally entitled to ask you about, or screen you for, a criminal record. They are also legally entitled to refuse to hire you based on this record.

So, what can you do if you have a criminal record? Read on.

NJ Background Check Laws: Delayed Criminal History Inquiries

A new law, the New Jersey Opportunity to Compete Act, N.J.S.A. 34:6B-11 et seq., (the “OCA”) delays the point at which a prospective employer is legally allowed to inquire about your criminal history. Effective March 2015, the OCA prohibits employers from:

• Posting advertisements or solicitations for job openings that explicitly state that no one with a criminal record will be considered;
• Requiring job applicants to fill out job applications or other screening forms that ask about their criminal record;
• Asking job applicants about their criminal record during the “initial application process,” defined as the period from when an applicant first inquires about employment and ending when the employer has conducted a first interview with the applicant. N.J.S.A. 34:6B-13. Notably, the OCA prohibits both oral and written inquiries into an applicant’s record during the initial application process. As such, it encompasses both sit-down first interviews as well as those conducted online or by email exchange.

It’s important to remember that, after the initial application process is complete, the OCA does allow employers to ask about criminal history and to rely on that information as they see fit. It’s conceivable, then, that an applicant with a criminal record could successfully apply for a job and complete a first interview, only to have the employer call back to request a background check.

For information on how to obtain your criminal history record in New Jersey, click here.

Limits and Exceptions to the Opportunity to Compete Act

Essentially, the law is geared to buy time for those with criminal records who are trying to re-enter the workforce. It allows such persons to “get their foot in the door” and, at the very least, apply for a job and hopefully secure an interview where they can argue their merits to prospective employers.

However, there are limits and exceptions to the OCA’s reach. Most importantly:

• The OCA only applies to employers with 15 or more employees. As such, the law excludes many small businesses.
• The law does not apply to positions involving in law enforcement, corrections, the judiciary, homeland security or emergency management.
• The law does not apply to positions where the employment sought or being considered is for a position where a criminal background check is required by law (for example, certain positions in education or childcare).
• The law does not apply where an arrest or conviction of the applicant would or may preclude the applicant from holding such employment as required by law.
• The law does not apply where any law rule or regulation restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees.

Finally, the OCA is very clear that applicants cannot sue employers in court for violations of the law. Instead, employers who violate the terms of the OCA by questioning applicants about their criminal records are only subject to civil penalties, payable to the state of New Jersey. Under the OCA, the penalties are $1,000 for the first offense, $5,000 for the second, and $10,000 thereafter.

Discriminated against based on your criminal record? Contact us

Since the OCA doesn’t allow for a private cause of action, you might argue that it doesn’t have much “teeth” in terms of enforcement. However, depending upon the specific circumstances, inquiries into a job applicant’s criminal and/or financial history may violate the federal Fair Credit Reporting Act and thereby serve as the basis of a lawsuit.

If you have questions regarding what an employer is legally allowed to ask about and consider during the job application process, you should speak with a qualified employment attorney in New Jersey. Contact us online or call us today for a free consultation.

See also:

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• Can My Boss Fire Me for Talking Politics at Work?
• I Filed a Lawsuit Challenging My Termination. Can My Former Employer ‘Bad-Mouth’ Me to Prospective Employers?