Bills Introduced to Limit Employers’ Ability to Require Applicants to Disclose Prior Criminal Convictions

On January 23, 2012, a bill was introduced (S1054) to prohibit New Jersey employers from requiring any job applicant to disclose whether the person has been convicted of a crime. This bill would not prohibit an employer from having an applicant undergo a criminal history record background check that is otherwise required by law as a condition of employment (for instance, for camp counselors, employees of adoption agencies, teachers, among other limited categories of employees). The penalty for a violation would be a civil penalty of not more than $10,000 for the first offense and not more than $20,000 for a subsequent offense.

On February 2, 2012, a more comprehensive bill (A2300) on this topic was introduced. This bill would prohibit employers from requesting information about an applicant’s criminal record on an initial written application, but would permit an employer to inquire about an applicant’s prior convictions during an interview. Additionally, employers would be prohibited from denying an applicant employment solely on the basis of the applicant’s criminal record unless there was a direct relationship between the convictions and the employment sought, or if granting the employment would involve an unreasonable risk to property or safety. To determine if an applicant could be denied employment based upon the criminal record, the employer would be required to document that it considered how the specific duties of employment related to the prior convictions, evidence of the applicant’s rehabilitation, and the amount of time since the offense was committed.

Also under A2300, an employer that denies employment based solely upon an applicant’s criminal conviction would need to provide a written notification and explanation to the applicant within five days. The bill also contains language that requires employers to provide notice and obtain consent before conducting background checks, requirements already contained within New Jersey’s Fair Credit Reporting Act. The penalty for a violation of A2300 would be a civil penalty of not more than $10,000 for a first offense and not more than $20,000 for a second or subsequent offense.

Additional bills (A1434 and S863) on the topic of employment of ex-convicts also were reintroduced, and were discussed in the December 2009 issue of the New Jersey eAuthority.