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Can a New Jersey Employer Lawfully Ask About Your Criminal Record?

April 22, 2016
Individuals looking for employment in New Jersey are often concerned about whether and when potential employers can use inquire into their criminal record during the application process. While New Jersey’s Opportunity to Compete (or “Ban the Box”) law prohibits employers from inquiring into an applicant’s background during the initial stages of the application process, nothing – besides an expungement – will prevent an employer from inquiring into your criminal background after an initial interview.

Effective March 15, 2015, the Opportunity to Compete Law requires most public and private employers in New Jersey with more than 15 employees to delay inquiry into criminal history until after the first job interview.  The law also prohibits employers from including questions regarding an applicant’s criminal record on employment applications (the “box”).  In addition, the law prohibits employers from advertising that the employer will not consider any applicant who has ever been arrested or convicted of a criminal offense.  According to the New Jersey Legislature, the law was intended to remove obstacles to employment faced by those with criminal records.
Certain positions are exempt from the Opportunity to Compete Law.  Those exemptions include jobs in law enforcement, corrections, and the judiciary – jobs for which criminal checks are required by law, as well as job for which the lack of a prior record is required for licensing or similar purposes.   Aside from these narrow exclusions, however, employers do face significant penalties for violating this law.  Although the law does not provide for a private cause of action for violations (applicants are limited to filing administrative complaints), civil penalties include $1,000.00 for the first violation; $5,000.00 for a second violation; and $10,000.00 for subsequent violations.
After the initial interview has ended, however, nothing in the Opportunity to Compete law prevents New Jersey employers from inquiring into an individual’s criminal history prior to making a formal offer.  Moreover, the Opportunity to Complete Law does not in any way prevent an employer from refusing to hire an individual based on information that is obtained in a criminal background check after the initial interview.  It is important to note, on the other hand, that even after the initial interview, employers are still not permitted to inquire into criminal records that have been expunged.
If you looking for employment and are concerned about potential employers using your criminal record against you during the application process, contact the expungement attorneys at the Law Office of Randolph H. Wolf. Once your criminal record is expunged, potential employers will no longer be able to see your arrest or conviction information on a background check – even after the initial interview – and you will no longer be required to disclose that information (unless you are applying for a position in the judiciary, law enforcement, or corrections, in which case you must disclose even expunged records).  Contact us today for a free eligibility evaluation at (732) 741-4448.

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