Proposed Law Seeks to Bar Employment Disqualification Based Upon Convictions, and to Bar Asking Applicants about Arrest Record

On November 23, 2009, identical bills (A4198/S12) were introduced in the Senate and Assembly that would address concerns associated with the difficulties in obtaining and maintaining employment following an individual’s release from prison. The bills would prohibit employers from discriminating against ex-convicts and would authorize the Commission on Civil Rights to enforce its provisions. The proposed bills are similar to an existing New York law (Article 23-A) that generates frequent litigation for employers.

Under the proposed bills, New Jersey employers would be prohibited from denying a person employment because he or she has previously been convicted of a criminal offense or because the person has been determined to lack “good moral character” based on a previous conviction. Employers would not be subject to this prohibition if: (1) there is a direct relationship between a previous criminal offense and the specific employment sought; or (2) hiring the person would involve an unreasonable risk to property or to the safety or welfare of specific persons or the general public. The bill would require employers to consider the following factors to determine if either of these exceptions apply: (1) the State’s public policy of encouraging employment of persons previously convicted of crimes; (2) the specific duties and responsibilities related to the employment sought; (3) the bearing the criminal offense will have on the person’s fitness or ability to perform the required duties; (4) the amount of time that has elapsed since the offense was committed; (5) the person’s age when the offense was committed; (6) the seriousness of the offense; (7) information provided by the person showing rehabilitation and good conduct; and (8) the legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

The proposed legislation also would prohibit employers from asking job applicants whether they have ever been arrested, charged with a crime, convicted of a sealed noncriminal offense, or adjudicated as a juvenile delinquent. Prior to the performance of background checks, employers would be required to inform job applicants in writing that: (1) a background check may be requested in connection with the application for employment; (2) the applicant, upon request, will be informed within 30 days if the report was requested, along with the name and address of the reporting agency; and (3) the applicant may review the report. An employer that performs a background check on a job applicant would be required to inform the applicant within 30 days of making the request for a background check and to provide the applicant with a copy of the law. Employers would be required to provide any job applicant who has been refused or denied employment with a written statement setting forth the reasons for such a denial within 30 days of a request from an employment applicant for such a statement.