The NJ Department of Workforce Development Issues Much Needed Guidance and Final Regulations on “Ban the Box” Law

On March 1, 2015 most New Jersey employers with 15 or more employees became subject to the requirements of the “The Opportunity To Compete Act” (the “Act”), more commonly known as the “Ban the Box” law that places significant restrictions upon employer inquiries into an applicant or employee’s criminal history. As explained more fully in our prior article on New Jersey’s Ban the Box law, with certain exceptions the law precludes an employer from i) placing an advertisement indicating that applicants for employment with criminal record will not be considered; ii) require an applicant to complete an employment application that makes inquiry into the applicant’s criminal record  prior to the completion of an initial interview; or iii) asking any questions about the applicant’s criminal record during the initial interview.

Following the Act’s passage, many employers had residual questions about how the Act was to be implemented, including questions  about  whether there needed to be a time interval between the first interview (where the inquiry about a criminal record is prohibited) and the second interview (where the inquiry about a criminal record is permitted); whether an “interview” would include an email exchange or written questionnaire; the extent to which employers, including multi-state employers, could make references to criminal background checks in employment applications; etc.

The Final Rules and Agency Guidance: On December 7, 2015 the New Jersey Department of Labor and Workforce Development issued its Final Rules for implementing the requirements of the Act. In addition, the Department published specific “Responses” to comments submitted by employers  seeking clarification of the Act’s requirements and the proposed regulations.   The Department’s clarifications include (but are not limited to) the following:

• The Act’s prohibition against making any inquiries into criminal history prior to the completion of the initial interview includes any inquires via the internet, public record search or through a third-party background check.
• The definition of “interview” in the Final Rules is modified to make it clear that it includes any live, direct contact by the employer with the applicant, whether in person, by telephone, or video conferencing, to discuss the employment being sought but does not include “the exchange of emails or the completion of a written or electronic questionnaire.”
• In the case of multiple interviews on a single day, once the employer has conducted the initial interview, the Act does not prohibit making inquiry into the applicant’s criminal record in subsequent interviews on that same day.
• Once the initial interview is completed, the employer is not prohibited from making inquiries into the applicant’s criminal history and refusing to hire the applicant based upon the criminal record – no prior deliberative process is required under the Act.
• The definition of “employer” in the Final Rules is modified to make it clear that it includes any employer doing business in the State with 15 or more employees over 20 calendar weeks, regardless of whether those employees work inside or outside of New Jersey.
• An employer may include a statement on the employment application that the applicant “may later be subject to a criminal background check as a condition of employment” because this is not an inquiry into the applicant’s criminal record.
• The Act does not prohibit a multistate employer from utilizing a single application for all jurisdictions that includes an inquiry into an applicant’s criminal history, so long as immediately preceding the inquiry the application states that in the event the applicant is seeking a position whose physical location will be in whole or substantial part in New Jersey, the applicant is instructed not to answer the question.
• Where a temporary help service firm assigns one of its employees to a client company, the client company is not considered an “employer” within the meaning of the Act and thus is not prohibited from making criminal inquires to the assigned worker.
• However, in the case of an employee leasing company (or professional employer organization), under law the employee leasing agency and the client company are deemed to be “co-employers” and thus both are jointly responsible for adhering to the Act’s requirements.   In this situation, if the employee leasing company has completed an initial interview of the applicant, the client company in not precluded from thereafter making inquiries into the applicant’s criminal history.
• Finally, where an individual is placed with an employer through an employment agency (thus not a leasing company or temporary help service firm), both the employment agency and employer to whom the individual is referred are an employer within the meaning of the Act.  Consequently, even if the employment agency has already completed an initial interview, the worksite employer is still prohibited from making any inquiries into the applicant’s criminal history until after it conducts its own initial interview.

The New Jersey Department of Workforce Development has issued its Final Rules which should answer many of the lingering questions employers had concerning the scope of the Act’s prohibitions against making criminal inquiries during the initial application process. The rules can be obtained directly from the Department of Workforce Development.  Employers should review their hiring practices to ensure that their current practices are compliant with the Final Rules and the agency’s guidance on how it interprets the Act’s requirements.   We at Lindabury are also available at any time to answer any questions regarding Ban the Box legislation, the new regulations or any other employment questions that may arise during the normal course of your business.