New Jersey and Washington, D.C. Enact “Ban the Box” Laws Prohibiting Application Questions About Criminal History
In August 2014, New Jersey and Washington, D.C. joined a growing list of jurisdictions that place limitations on an employer’s ability to obtain information about an applicant’s criminal history. These laws are often called “ban the box” laws because, among other things, they prohibit employers from asking applicants to check a box indicating whether the applicant has ever been convicted of a crime.
New Jersey’s Opportunity to Compete Act prohibits employers from requiring applicants to complete any application that asks about their criminal history. Employers cannot ask applicants about their criminal history until after the employer has conducted a first interview, although employers may address the subject earlier in the hiring process if an applicant voluntarily brings it up.
The New Jersey law goes into effect in March 2015 and applies to both public employers and private employers who employ fifteen or more employees over 20 calendar weeks, as well as job placement and referral or other employment agencies. In addition, the New Jersey law prohibits job advertisements which state that an employer will not consider anyone who has been arrested or convicted of a crime.
Although there is no private right of action under the New Jersey law, the Commissioner of Labor can impose a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. The New Jersey law also precludes local governments from enacting their own laws on the same subject matter, and therefore preempts any such laws that already exist, such as the City of Newark’s ban the box law.
The District of Columbia Fair Criminal Record Screening Amendment Act prohibits employers who employ more than 10 employees in the District of Columbia from making any inquiry about, or requiring an applicant to reveal, “any arrest or criminal accusation made against an applicant, which is not then pending against the applicant or which did not result in a conviction” until after the employer has made a conditional offer of employment. An employer may only withdraw a conditional offer for a “legitimate business reason,” the reasonableness of which is determined by considering the following six factors:
- the duties and responsibilities of the job;
- the bearing, if any, of the criminal conviction on the individual’s fitness or ability to perform the job;
- the time that has elapsed since the criminal offense;
- the age of the applicant at the time of the criminal offense;
- the frequency and severity of the criminal offense; and
- any information the applicant may provide about his or her good conduct or rehabilitation since the criminal offense.
Under the D.C. law, if an applicant believes an offer has been withdrawn because of the applicant’s criminal history, the applicant may request a copy of any records the employer has considered, which the employer must provide within 30 days of the applicant’s request, along with a notice that advises the applicant that he or she may file a complaint with the D.C. Office of Human Rights.
The D.C. law does not include a private right of action, but the D.C. Commission on Human Rights may impose fines ranging between $1,000 and $5,000, half of which will be provided to the applicant if a violation is found. The D.C. statute, which was signed into law on August 22, 2014, will go into effect after a 30 day Congressional review.
Examples of Other Jurisdictions
Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island also have state-wide ban the box laws. Legislation was introduced in Arizona in January 2014, but has not yet been passed.
In Hawaii, the first state to pass such legislation, employers cannot inquire about an applicant’s criminal history until after a conditional offer of employment has been made and such offer may only be withdrawn if a conviction bears a “rational relationship” to the duties and responsibilities of the position sought.
Under legislation recently enacted in Illinois, effective January 1, 2015 employers and employment agencies may not inquire about, consider, or require disclosure of an applicant’s criminal record until the applicant has been notified that he or she has been selected for an interview. If no interview is conducted, the information cannot be obtained until after a conditional offer of employment is made. Minnesota has enacted similar legislation.
Massachusetts prohibits employers from asking about criminal history on an employment application, limits the types of convictions an employer may consider and requires employers to provide an applicant with a copy of a criminal history report prior to being questioned about his or her criminal history and before any decision is made based upon the report.
Rhode Island’s ban the box law makes it unlawful for an employer to inquire about whether an applicant has ever been convicted of a crime before the first interview.
Several local governments passed ban the box ordinances. In New York, Buffalo and Rochester have passed ban the box laws and, as explained below, New York City is considering one. In Buffalo, employers cannot seek information about criminal history prior to a first interview and, if no interview is conducted, employers must inform applicants whether they intend to conduct a criminal background check before employment begins. In Rochester employers are prohibited from seeking information about criminal convictions until after the initial interview and, if no interview is conducted, the employer must extend a conditional offer of employment and tell the applicant it will conduct a criminal background check.
Other cities have passed similar laws. Philadelphia employers cannot seek any information about criminal convictions before the end of a first job interview. Effective August 13, 2014, San Francisco employers with 20 or more employees are prohibited from seeking information about an applicant’s criminal history until after the first interview. Baltimore enacted a ban the box ordinance in April 2014 under which employers with 10 or more employees may not inquire into a job applicant’s conviction history until after a conditional offer of employment has been made. Seattle has an ordinance which prohibits all employers and employment agencies from inquiring into an applicant’s criminal history until after the employer has screened applications or resumes to eliminate unqualified applicants. In addition, the Seattle law requires that, before an employer can make an employment decision based upon a conviction, the employer must notify the employee or applicant about the records or information on which the employer is relying and hold the position open for a minimum of two business days to provide a reasonable opportunity for the employee or applicant to explain or correct the information.
Other jurisdictions, including New York City, are considering various forms of ban the box legislation. The New York City Council introduced the “Fair Chance Act” in April 2014 and the bill has been referred to the Civil Rights committee. The New York City law, which currently has a veto-proof majority of votes on the City Council, would require employers to make a conditional job offer prior to inquiring into an applicant’s criminal history. If an employer wants to withdraw the job offer after receiving information about a prior conviction, the employer would be required to explain why and provide a copy of the record it reviewed. This New York City legislation would be in addition to current New York State law which already makes it unlawful for an employer to use a criminal conviction as the basis for an employment decision unless there is a direct relationship between the crime and the job. See New York Expands Employer Obligations Regarding Criminal Background Checks.
Some jurisdictions have passed ban the box laws that apply only to public employers and private employers who are government contractors. For example, in New York City an Executive Order prohibits employers who have contracts with the New York City Human Services Department from asking about an applicant’s criminal history on job application documents or in an initial interview. Vendors and contractors who do business with Boston and Detroit are prohibited from including questions about criminal history on job applications.
Employers should review their employment applications to make sure they are in compliance with applicable ban the box laws. Employers also should review any interview or other pre-employment guidelines and procedures and provide updated training to employees who conduct applicant interviews.
As the number of jurisdictions enacting ban the box laws continues to increase, employers who do business in multiple jurisdictions should consider removing all questions regarding criminal history from their general employment applications and use a separate document if they wish to obtain information regarding an applicant’s criminal history in those jurisdictions which do not have ban the box laws.
Please do not hesitate to contact any of our attorneys if you have any questions regarding ban the box laws, or if you would like assistance in reviewing your employment applications and other pre-employment inquiries and procedures.