Mistakes that Haunt Job Applicants: Criminal Records and Ban the Box Legislation

Employment Attorneys Serving Northern and Central New Jersey

The phrase “everyone makes mistakes” is often used to discourage people from dwelling on their errors. However, those whose mistakes resulted in criminal records are left with an unshakeable stigma that interferes with their ability to make a living and support themselves and their families. In an effort to provide job applicants with criminal records a fair chance in obtaining employment, “Ban the Box” legislation has been passed in over 100 states, cities and counties and President Obama directed that federal agencies follow suit. This year, both New Jersey and New York City have passed such legislation.

However, despite both being classified as “Ban the Box” statutes, New Jersey’s Opportunity to Compete Act and New York City’s Fair Chance Act are very different in the protections they offer. First, New Jersey’s statute applies only to employers with 15 or more employees over 20 calendar weeks, while New York City’s applies to companies with just four or more employees.

With regard to the substantive protections provided by these laws, New York City’s statute provides much greater protection for applicants and employees with criminal records.

When Employers Cannot Inquire about Criminal Backgrounds

New Jersey: Employers are prohibited from inquiring about applicants’ criminal records during the initial employment application process (defined as through the first interview). However, if an applicant voluntarily discloses his/her criminal record during the initial employment application process, the employer can inquire about the specifics of the applicant’s criminal history.

New York City: Employers cannot inquire about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been made. This includes a prohibition on conducting background checks as well as internet searches aimed at uncovering an applicant’s criminal history prior to the conditional offer of employment. Unlike New Jersey’s statute, if an applicant discloses his/her criminal record to a New York City employer prior to a conditional offer of employment, the employer must tell the applicant that the information will not be considered in determining whether to offer employment. In addition, New York Correction Law Article 23-A bans employment discrimination based on criminal records after the application process, providing further protection to New York City’s citizens.

Both statutes prohibit employers from publishing advertisements that provide that applicants with criminal records will not be considered and from utilizing employment applications that ask about criminal history.

After Employers Inquire about Criminal Backgrounds

New Jersey: After the first interview of an applicant is conducted, New Jersey employers can inquire about and refuse to hire an applicant based on their criminal background unless the record has been expunged or pardoned.

New York City: After a conditional offer of employment has been made, New York City employers can inquire about criminal convictions and require a background check. However, the employer still cannot inquire about arrests that did not result in a conviction or sealed convictions or use this type of criminal history in deciding not to hire an applicant. Once employers obtain information about other convictions, they can only withdraw conditional offers of employment if they prove (1) there is a direct relationship between the criminal record and the prospective job or (2) employing the applicant would involve an unreasonable risk to property, safety, or welfare using specific factors set forth in New York Correction Law Article 23-A. In notifying applicants of the withdrawal, New York City employers must comply with the “Fair Chance Process” and (1) disclose a written copy of their inquiry into the applicants criminal background, (2) share with applicants’ a written analysis of whether there is a direct relationship or unreasonable risk, and (3) allow three business days for the applicant to respond.

Of course, as with all laws, there are exceptions to New Jersey and New York City’s “Ban the Box” legislation including that applicants for law enforcement positions or for positions where a background check is required or employees with criminal records are prohibited by law are not protected. If you think your criminal background has been illegally considered in an employment application process, contact an attorney at Green Savits for additional information regarding these statutes or potential representation of your interests.