NJ EMPLOYMENT LAW CLIENT ALERT: Timing is Everything-Recent Amendments Strengthen New Jersey Opportunity to Compete Act

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In a move that will provide additional protections to job seekers in New Jersey, outgoing New Jersey Governor Chris Christie recently approved amendments to New Jersey’s Opportunity to Compete Act “OTCA."

For job seekers whose past criminal convictions follow them and could unfairly prevent them from obtaining gainful employment, the OTCA, New Jersey’s ‘ban the box' law offers applicants protection by prohibiting employers from inquiring into a job applicant’s criminal history during the initial application process. The initial application process is defined as the period beginning when an applicant first makes an inquiry regarding a prospective position or a job vacancy, or when an employer makes an inquiry to an applicant about a prospective position or job vacancy and ending when the employer conducts a first interview, whether in person or by any other means.  Significantly, the recent amendments to the OTCA expand the prohibition to include online inquiries into an applicant’s criminal history, along with written and oral inquiries. Further, the OTCA now prohibits inquiries pertaining to an applicant’s expunged criminal records. 

In addition to the above prohibitions against inquiries into an applicant’s criminal record, New Jersey employers should be aware that the OTCA prohibits employers from publishing, or causing to publish, any advertisement that solicits applicants for employment that explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses. However, there is an exception to this provision for law enforcement, corrections, judiciary, homeland security and emergency management positions.     

An employer who violates the OTCA is liable for a civil penalty not to exceed $1,000.00 for the first violation, $5,000.00 for the second violation and $10,000.00 for each subsequent violation.

From an employer’s perspective, an applicant’s criminal history is an important consideration as vicarious liability and negligent hiring claims constitute a real threat. In that regard, while employers must ensure they comply with the requirements of the OTCA concerning the content of their job advertisements and the manner in which they collect information from a potential employee, the law does not preclude an employer from refusing to hire an applicant based on the applicant’s criminal record. As such, at the appropriate stage of the hiring process, employers may have to consider the nature of the potential employee’s criminal history vis-à-vis the duties and responsibilities of the position. To some extent, employers are always required to make a judgment call concerning whether to offer a potential employee a position; however, the requirements of the OTCA impact the timing of the employer’s pre-hiring analysis.  

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