Last August, New Jersey Governor Christie signed into law “The Opportunity to Compete Act”, otherwise known as the “Ban the Box” bill. This legislation will restrict employers from inquiring about an applicant’s criminal background during the initial stages of the application process. The law will take effect on March 1, 2015, and makes New Jersey the 13th state (along with Delaware which enacted similar legislation in May) to enact a Ban the Box bill. The New Jersey law pre-empts the local laws previously enacted for Atlantic City and Newark.
In addition to these thirteen states, 98 counties or local jurisdictions have already implemented laws for employers who are based in, or some cases employ workers within, their jurisdiction. In the Mid-Atlantic area these include: (in Pennsylvania) Allegheny County, Lancaster, Philadelphia, and Pittsburgh; (in Delaware) New Castle County, and Wilmington; (in Maryland) Baltimore, Montgomery County, and Prince Georges County; and effective October 21, 2014 the District of Columbia.
It should be noted that, while all “Ban the Box” laws pertain to the performance of (or use of) criminal background checks; they generally do not restrict employers from conducting standard non-criminal background searches or verifications during the interview/selection process.
Background on “Ban the Box”
The Ban the Box campaign was started in 2004 by All of Us or None, a national civil rights movement of formerly incarcerated people and their families (Legal Services for Prisoners with Children). The laws emerging from this effort are also referred to as “Fair Chance Laws”.
The campaign was launched after a series of meetings that identified job and housing discrimination as huge barriers to convicted criminals’ successful return to their communities after serving time in jail or prison. For instance, if an employer sees than an applicant had been previously arrested, this knowledge may influence, whether knowingly or unknowingly, their decision about whether to hire that individual.
Moreover, asking about criminal history at the beginning of the application process can automatically exclude a large number of candidates who may otherwise be qualified.
As nearly one in three Americans have a criminal history record, even if arrests didn’t lead to a conviction or to time-served in prison, the number of individuals who may be turned away is enormous.
Ban the Box laws aim to ensure that companies assess job candidates on their skills and abilities before considering a criminal history, rather than being swayed by incidents in their past that may have no bearing on their ability to perform the job.
Ban the Box laws also look to raise employers’ awareness that people who have served their sentences and are able to get back to work will have a better chance at becoming productive members of society who pay taxes and support other businesses in the communities in which they live and work; and are more likely to remain in their job.
Ban the Box laws don’t mean that businesses have to hire convicted criminals, or that they can’t ask about a candidate’s criminal history or conduct background checks on new hires. Rather, it means they can’t ask about it before extending an offer. This creates a new “Conditional Employee” status in which the employment offer is made and employment may actually begin, but permanent status is pending the results of the background screening process.
From the business perspective, given the fact that the primary objective in recruiting is to hire the most qualified people to fill specific jobs, the practices resulting from Ban the Box laws should broaden the pool of highly skilled candidates for a job.
“Ban the Box” in Delaware
Delaware’s law (House Bill 167 enacted in May 8, 2014)1 applies only to public employers and stipulates that they cannot consider a job applicant’s criminal record, criminal history, credit history, or credit score during the application process, up to and including the first interview. Once an applicant is deemed otherwise qualified and a conditional offer of employment is extended, the public employer may inquire into the applicant’s criminal and credit history. However, inquiry into an applicant’s criminal history is limited to felony convictions within the prior ten years and misdemeanor convictions within the prior five years. Further, the law requires employers to consider several enumerated factors when deciding whether to revoke a conditional offer based on the results of a background check.
Delaware’s Ban the Box law is not applicable to state, county, or municipal police agencies, the Department of Corrections, or any position where inquiry into an applicant’s criminal history is specifically required or permitted by state or federal law.
While the new law is not expressly applicable to contractors, a contractor’s compliance with the “Ban the Box” law will be among the performance criteria evaluated when awarding governmental contracts in the State of Delaware.
The following is a synopsis that is a part of the official Act as recorded. (Click here to read the Delaware Law.)
This bill would prohibit a public employer from inquiring into or considering the criminal record, criminal history or credit history or score of an applicant before it makes a conditional offer to the applicant. It would permit inquiry and consideration of criminal background after the conditional offer has been made. The bill specifies that once a background check is conducted a employer shall only consider felonies for 10 years from the completion of sentence, and misdemeanors for 5 years from the completion of sentence. Further, employers are required to consider several enumerated factors when deciding whether to revoke a conditional offer based on the results of a background check.
Police forces, the Department of Corrections and other positions with a statutory mandate for background checks are excluded from these provisions.
The bill also requires contractors with State agencies to employ similar policies where not in conflict with other State or federal requirements.
New Jersey’s “Ban the Box”
The legislation expressly prohibits an employer from requiring an applicant to mention or discuss their criminal record during the “initial employment application process”. The following is an excerpt from the Act2:
(1) An employer shall not require an applicant for employment to complete any employment application that makes any inquiries regarding an applicant’s criminal record during the initial employment application process.
(2) An employer shall not make any oral or written inquiry regarding an applicant’s criminal record during the initial employment application process.
The “initial employment application process” begins when an applicant or employer first makes an inquiry to the other party about a prospective position and concludes when the “… employer has conducted a first interview, whether in person or by any other means, of an applicant for employment”.
Notwithstanding these provisions, if an applicant voluntarily discloses any information about their criminal record (either verbally or in writing) during the initial application or interview process, the employer is free to make immediate inquiries (both direct and through investigation).
Employers may also legally inquire about criminal histories sooner if the applicant is seeking employment in law enforcement, corrections, the judiciary, homeland security, emergency management, or other positions for which a criminal background check is required by law, rule or regulation, such as banking (a more-complete explanation of these exceptions is included in the official Act).
The Act applies to employers who employ at least 15 employees over 20 calendar weeks and who do business, employ persons, or take applications for employment within New Jersey.
As part of the recruiting process, the legislation prohibits employers from publishing “… any advertisement that solicits applicants for employment where that advertisement explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses.”
The New Jersey Division on Civil Rights will be tasked with enforcement of the Act and will be empowered to impose civil penalties up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation.
Importantly, the Act explicitly does not provide for a private cause of action and so it does not necessarily expand a business’ legal liability.
In keeping with this law, the applicant will already be offered a position before the employer becomes aware of any criminal history. While the law does not preclude an employer from making an action once the new employee’s history is known, employers should understand and adopt best practices for dealing with these employees as a result of the information.
Employers based, or operating, in New Jersey should begin reviewing their employment applications and their application processes, including interview guides, sample questions, and job postings, to ensure compliance with the legislation’s requirements by March 1, 2015.
The following is a synopsis that is a part of the original Bill as recorded. (Click here to read the New Jersey Law.)
This bill, entitled “The Opportunity to Compete Act”, would supplement the State’s civil rights law to provide persons with criminal histories certain protections while seeking employment. Specifically, this bill would prohibit an employer from conducting a criminal background check on job candidates during the pre-application and application process. Under the bill, the application process begins when a candidate inquires about employment and ends when an employer has extended a conditional offer of employment. The pre-application period precedes the application period and includes recruitment and solicitation of candidates.
Once a candidate has been found to be qualified and has received a conditional offer of employment, an employer is authorized to inquire about and consider a candidate’s criminal history. Before an inquiry into the candidate’s criminal history is made, the employer must provide the candidate a written notice of the inquiry and obtain the candidate’s consent to it. The candidate also shall be provided with a written “Notice of Rights” outlining the protections that the candidate is entitled to under the bill.
“Ban the Box” in the District of Columbia
In October 2014 the Mayor of the District of Columbia (in conjunction with the District Council) signed an Act (B20-0642 – Fair Criminal Record Screening Act of 2014)3 that affects the recruiting and hiring of public and private employees.
Similar to the intent of the New Jersey law, this Act restricts employers within the District from asking about and using criminal record information prior to making a conditional offer of employment. As with all of these laws, the specific restrictions on how employers can process adverse findings from background screens (as well as the penalties for non-compliance) are the areas of greatest variability and risk. Following the extension of a conditional offer of employment in the District of Columbia, an employer may only withdraw the conditional offer to an applicant or take an adverse action against an applicant for a legitimate business reason. The employer’s determination of a legitimate business reason must be defensible.
To assist in the successful reintegration of previously incarcerated persons into the community by removing barriers to gainful employment, to prohibit the consideration of a job applicant’s arrest record during the hiring process, to restrict an employer’s inquiry into a job applicant’s prior convictions until after a conditional offer of employment, to establish penalties, to give authority for enforcement to the Office of Human Rights, and to require the Office of the District of Columbia Auditor to report on the impact of this act on returning citizens and employers.
Brandywine is providing this information as a service to our clients. None of the information contained herein should be construed as legal advice, nor is Brandywine engaged to provide legal advice. Although we go to great lengths to make sure our information is accurate and useful, we recommend that you consult your attorney or legal department if you want assurance that our information, and your interpretation of it, is appropriate to your particular situation.
For more information about these laws and practices, and how this and other operational risks can be avoided, contact Benjamin Ventresca, Managing Partner – Brandywine Consulting Group, Inc at 610.696.1905.