Know the Laws on Criminal Conviction Inquiries
By Bob Goldberg, NARDA General Counsel
Due to recent changes in the laws of many states, now is a good time to review your application for employment. It often appears that the very information that would influence a hiring decision is excluded from an employer’s consideration. As with lie detector examinations for current employees, elected officials have now concluded that in many instances whether a prospective employee has a criminal conviction is off-limits.
A national movement is growing to “Ban the Box” that asks applicants whether they have been convicted of a felony in the past seven years. As previously noted, it is improper to inquire about arrests due to the presumption of innocence. Currently, “Ban the Box’ laws primarily are targeted at public employers; however, efforts to impose these same restrictions on private employers are increasing. New Jersey, Washington, D.C., and San Francisco have become the latest jurisdictions to pass such legislation.
Laws prohibiting private employers from seeking certain information regarding criminal convictions already are in place in Hawaii, Illinois, Massachusetts, Minnesota and Rhode Island. Even in states that do not have restrictions, municipalities within many states do. These include Baltimore, Philadelphia and Seattle.
Because of this clear trend developing, it is time to remove the conviction box from your employment application. The New Jersey Opportunity to Compete Act will become effective on March 1, 2015, and it applies to employers with 15 or more employees. The act prohibits any inquiry into criminal activity during the initial employment application process. The restriction applies to both written and oral inquiries. If the applicant volunteers information regarding a criminal past, then the potential employer is free to ask questions regarding the matter. Clearly disputes will develop as to whether a voluntary disclosure occurred.
In New Jersey, the initial employment application process concludes after the first meeting. Thus, during the second encounter, an inquiry can be made. New Jersey law prohibits employment advertisements that advise candidates who have been convicted of crimes that they will not be considered. These restrictions do not apply to positions where criminal background checks are required by law, such as schools, nursing homes and law enforcement. None of these laws prohibit an employer from denying employment based upon a criminal conviction provided that the refusal complies with all other applicable laws.Judicial rulings have been limiting the use of criminal convictions, as well. Several courts have concluded that the criminal offense must in some manner be related to the responsibilities of the position sought. Thus an individual convicted of theft could rightfully be denied an opportunity to work in any environment where theft of goods or monies may be possible. However, an individual convicted of domestic violence may not be rightfully denied the same position.
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