Last week, New Jersey Governor Chris Christie signed the Opportunity to Compete Act (Bill S2124) into law, thereby barring New Jersey employers from inquiring about job applicants’ criminal histories during the preliminary job application process. Known more commonly as “Ban the Box” legislation, the Opportunity to Compete Act makes New Jersey the sixth state in the nation (following Hawaii, Illinois, Massachusetts, Minnesota and Rhode Island) to extend such protections to job applicants in the private sector.
The legislation precludes employers who employ 15 or more employees from requiring job applicants to identify information about their criminal histories when filling out a job application, or from listing information in job postings which suggests that individuals with a criminal record will not be considered for the position. However, the law still allows employers to investigate applicants’ criminal histories after an initial interview or earlier if the issue is raised by the applicant himself/herself. Employers violating the Opportunity to Compete Act will face fines of $1,000 for a first offense, $5,000 for a second offense, and $10,000 for each subsequent violation. The law is scheduled to take effect on March 1, 2015.
As reported in this earlier blog post, the legislation is designed to assist capable, qualified individuals with criminal backgrounds to avoid recidivism and have a fair opportunity to apply for jobs without being judged at the outset based on their troubled histories. The enacted legislation, however, does provide employer exemptions for jobs where criminal background checks are mandated by law or for certain sensitive, security-related positions.
In contrast to the “Ban the Box” restrictions imposed on employers’ job applications, the New Jersey Appellate Division recently expanded employers’ rights to curtail job applicants’ ability to sue. In the Appellate Division’s June 2014 decision in Rodriguez v. Raymours Furniture Co. Inc., Case No. A-4329-12T3, the Court ruled that New Jersey employers may limit the applicable statute of limitations for prospective employees seeking to sue their employers via the inclusion of a clear, unambiguous and reasonable provision in job applications. In that case, an individual’s claims under the New Jersey Law Against Discrimination, which carries a two (2)-year statute of limitation, were dismissed after he was deemed to have waived the statute’s protections by signing the company’s employment application, which shortened the applicable statute of limitations to six (6) months.
Given the recent developments in the law under the Opportunity to Compete Act and the Rodriguez decision, it is recommended that New Jersey employers seek legal counseling and guidance with their job application processes and policies.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.