The New Jersey Legislature is considering a bill aimed at helping individuals with a criminal record by prohibiting employers from considering the conviction during the hiring process.
This well-meaning bill, S-2586, is called the Opportunity to Compete Act, but perhaps the Opportunity to Sue Act would be a better name because it would likely serve as a hiring disincentive while spurring spurious suits against honest businesses.
This so-called ban-the-box legislation — the reference is to the box on employment forms that must be checked off by applicants with a criminal record — would hamstring employers at the start by restricting wording in “help wanted” advertisements. The handcuffs would be tightened during the interview, when an employer would be prevented from inquiring about a candidate’s criminal background. In fact, the whole subject would be taboo until the company extended a conditional offer of employment — and, even then, the candidate could veto the employer’s ability to order a background check.
That kind of situation begs for a suit. What happens, for example, if the candidate says no to the background check? A company could withdraw the employment offer, but that could spark discrimination or other claims.
Even if the candidate consents to a background check, the bill would require the employer to ignore most first- through fourth-degree offenses so long as the offender was released from custody more than 10 years ago. Those offenses can include drug possession, battery and shoplifting.
Fortunately, the proposed statewide legislation does have some apparent carve-outs: existing federal exemptions could let a bank, for example, order a criminal background check without first seeking a candidate’s permission. Further, such an institution could likely reject a candidate with a theft or other conviction on his or her record, regardless of when it occurred.
Still, what if an individual declines to consent to the background check but a kind-hearted company makes the hire anyway and the individual goes on to commit a violent crime on the job? The company could be sued because it did not exercise “reasonable care” in checking out the employee’s history.
In some cases, even if a criminal conviction warrants termination of a conditional job offer, the employer would still be required to hold a time-consuming “good faith” discussion with the candidate to allow him or her to explain the background of the crime, rebut any inaccuracies in the criminal history and provide evidence of rehabilitation.
Even then, if the company decides against hiring the applicant, it must send a registered letter to the individual explaining the decision and forward all pertinent documentation associated with it. The rejected applicant then has 10 days to effectively appeal the decision to the company, although the employer is apparently free to select someone — an anomaly that could again lead to a staggering variety of suits.
To protect themselves on a proactive basis, companies would be forced to institute extensive and expensive training programs to ensure that any employment postings make no “direct or indirect” mention of a criminal background check and that anyone involved in the hiring process refrain from asking anything about criminal convictions unless the candidate brings it up.
The added costs would not end there, however. Employers would also have to institute procedures to document all the steps taken during the hiring process, from the initial “help wanted” ad all the way through to the candidate selection, the interview and the offer or rejection process. In this uncertain economy, small businesses and larger organizations as well are trying to trim costs, but this bill would instead add to their expenses while forcing them to further stretch limited personnel and other resources.
Early on, Gov. Chris Christie established a Red Tape Commission charged with reviewing New Jersey rules and regulations that burden businesses without providing much value. The question now is whether he will apply that same standard to a proposed law that will burden the organizations that create jobs while potentially placing employers, employees and customers at greater risk. •