On August 11, 2014, New Jersey enacted the “Opportunity to Compete Act” (“OCA”) prohibiting employers with fifteen (15) or more employees from making any inquiries into the criminal background of job applicants until the completion of the “initial employment application process.”
According to the state legislature, the purpose of the law, which becomes effective on March 1, 2015, is to remove obstacles to employment for the roughly 65 million American adults with criminal records. New Jersey is the sixth state to enact such legislation, popularly known as “ban the box” laws, because they prohibit employment applications from including the question “Have you ever been convicted of a crime?” with the “yes or no” boxes for the applicant to check off. The new law explicitly preempts all local laws, such as Newark’s ban the box law.
The OCA specifically prohibits employers from including any criminal background questions on an initial application or any other written questionnaire and from making any oral inquiry into the subject until the conclusion of the “initial application process,” which the law defines as completion of the first interview, whether in person or by any other means. The law also makes clear that it does not in any way prohibit an employer from refusing to hire an applicant based on a criminal record (with certain exceptions).
It is important to note that any advertisement or posting for a position, which states that applicants will be required to submit to a criminal background check, must also include the following language: “New Jersey law prohibits employers from considering the criminal record of applicants for employment under certain circumstances.”
Although applicants do not have a private right of action against employers for violations of the OCA, the State Department of Labor can assess civil penalties of up to $1,000 for the first offense, $5,000 for the second offense and $10,000 for each additional offense.