On Aug. 11, New Jersey Gov. Chris Christie signed the Opportunity to Compete Act into law, making his state the sixth in the U.S. to “ban the box.” Ban-the-box laws, which have been passed for private employers in six states and seven cities over the last few years, from Hawaii and Minnesota to Buffalo and Seattle, prevent companies from asking job seekers to check a box on their job applications indicating whether they’ve ever been convicted of a crime.
“This is really a growing movement,” Daniel Saperstein, an associate in the labor and employment law department at Proskauer Rose’s Newark office, told CorpCounsel.com.
These laws, some of which are more onerous for employers than others, are intended to reduce barriers for those with past convictions trying to join or rejoin the workforce. However, they can end up putting extra compliance stress on employers that already have plenty to think about when hiring new workers. “I think that for employers there’s an overall concern that these laws will make it more challenging to vet their candidates sufficiently,” said Saperstein.
New Jersey’s law goes into effect in March 2015 and applies to employers with 15 employees or more in most industries, with a couple of exceptions such as law enforcement and emergency management. Under the statute, covered employers will not be able to ask about an applicant’s criminal history until after the initial application process—the first interview of the applicant. Following that, questions about past convictions and denial of employment based on criminal records are fair game, as long as they don’t run afoul of other laws. Job applicants also may choose to voluntarily disclose information about convictions upfront, in which case the New Jersey law says it will no longer cover them.
New Jersey’s approach to banning the box looks to be less burdensome on employers than some of the other ban-the-box laws in other jurisdictions, explained Saperstein. San Francisco, he noted, might have the most restrictive version he’s encountered. There, the employers must wait until after the first live interview (or, at their discretion, until a conditional job offer is made) to ask about criminal records. The law also restricts the types of criminal history employers can ask about, prevents them from taking into account convictions that are 7 years old or older, and requires employers to post notices about the law.
Banning the box certainly is creating practical challenges for employers as it becomes a private-sector concern. “For better or for worse, a lot of employers rely upon that conviction question as well as background checks in hiring people,” Steven Luckner, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart’s Morristown, N.J., office, told CorpCounsel.com. Waiting until later in the hiring process, whether it’s after the first interview or following a conditional job offer, to ask about criminal history can lead employers to unnecessarily expend time, money and energy. Under the New Jersey law and those in other jurisdictions, there also could be substantial monetary penalties for noncompliance.
All of these concerns are heightened for employers operating in multiple jurisdictions. Even if only one employee is hired in New Jersey, for example, the employer still has to follow the state’s law for all hires. “For these multijurisdictional employers, they need to stay on top of it, and they need to make sure they have an application that’s compliant in all the states they’re doing business or hiring employees,” said Luckner. He recommends that multistate employers consider having a job application that is compliant with the laws in the most restrictive jurisdiction in which they hire—just to be safe.
Of course, the compliance challenges for employers when it comes to background checks go beyond ban-the-box laws. There are plenty of state laws placing other restrictions on what may be considered when it comes to background checks in hiring, and the EEOC released its own guidance on the topic in 2012.