March 1, 2015: The Opportunity to Compete Act Bars Employers From Asking Job Applicants About Their Criminal History During the Initial Employment Application Process

A new law that became effective on March 1, 2015 in the State of New Jersey likely affects your employment application and personnel policies.

“The Opportunity to Compete Act” prohibits employers from asking job applicants about their criminal history during the early stages of the hiring process. (See P.L. 2014, c. 32)   The Act covers any employer that has 15 or more employees over 20 calendar weeks. It specifically prohibits employers from inquiring- either in writing or orally- about a job applicant’s criminal record during the initial employment application process.  It also precludes an employer from requiring job applicants to complete applications that ask about criminal records during the initial employment application process.  The initial employment application process is defined as beginning when an applicant first makes an inquiry about a prospective employment position or when an employer first makes such inquiry to an applicant, and concludes when an employer has conducted a first interview of the applicant.

The law, however, does not preclude an employer from inquiring about an applicant’s criminal background after the initial employment application process or from denying an applicant employment based on the candidate’s criminal history.

The Act is subject to a number of exceptions and does not apply to positions sought in law enforcement, corrections, the judiciary, homeland security or emergency management; where a criminal background check is required by law, rule or regulation; where an arrest or conviction would serve as a bar to employment under a law, rule or regulation; or 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.

The law subjects employers who violate the Act to civil penalties of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development. The law, however, does not provide individuals with the right to bring a lawsuit against an employer for a violation of the Act.

Based on the passage of this Act, your application and hiring policies may need to be reviewed to ensure compliance with the law. We are available to assist you in that regard and to answer any questions you may have about this new law.