New Jersey Law on Employer Use of Arrest and Conviction Records

In New Jersey, employers may not ask about criminal history until the later stages of the application process.

An estimated 65 million Americans have a criminal record. If you are one of them, searching for a job could be tough. Surveys show that a majority of employers—92%, according to one recent survey—check criminal records when hiring for some or all positions. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete in today’s tight job market.

Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. New Jersey law gives applicants some protection in this situation, too.

Federal Protections for New Jersey Applicants With a Criminal Record

Employers are limited by two federal laws when seeking or considering an applicant’s criminal records in hiring:

  • Federal antidiscrimination laws. Title VII of the Civil Rights Act prohibits employers from discriminating against applicants and employees based on certain protected characteristics. While criminal history is not a protected category, the Equal Employment Opportunity Commission has recognized that members of certain groups—particularly African American and Latino men—would be disproportionately impacted by a blanket policy of not hiring applicants with a criminal record. To avoid committing race discrimination, the EEOC advises employers to consider certain factors—including the nature of the crime and the nature of the job—before denying employment.
  • Criminal background check laws. The Fair Credit Reporting Act (FCRA) applies whenever an employer hires a third party to run a background check on a job applicant. Among other things, the employer must obtain the applicant’s written consent and provide written notice if it plans on rejecting the applicant based on the contents of the report. Employers may, however, refuse to consider applicants who refuse to authorize a background check.
To learn more about these federal protections, see our article on getting hired with a criminal record.

New Jersey Law on Use of Criminal Records

The New Jersey Opportunity to Compete Act is a “ban-the-box” law that prohibits employers with 15 or more employees from:

  • advertising in a job posting that applicants with a criminal record will not be considered for the position, or
  • asking job applicants about their criminal history during the initial application process, including on an employment application.

An employer may ask an applicant about—or otherwise seek information relating to—criminal history only after it has conducted an interview of the applicant. However, the law provides some exceptions where employers may ask about criminal history sooner, including if:

  • the position is in law enforcement, corrections, the judiciary, homeland security, or emergency management
  • a criminal background check for that position is required by law
  • an arrest or conviction of a particular crime would make the applicant ineligible for the position by law
  • the employer has a program designed to hire people with a criminal past, or
  • the applicant voluntarily discloses information about a criminal record.

Employers may refuse to hire a job applicant based on arrest records or conviction records, unless the conviction has been expunged or erased through executive pardon.

New Jersey also has a law similar to the federal FCRA. Under state law, employers must obtain an applicant’s written consent before ordering a criminal background check from a third party and must provide notice before rejecting an applicant based on the contents of the report.

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