Building a team is one of the most important steps in creating a successful business. Taking on employees, however, creates an employer-employee relationship that could fall under the jurisdiction of local, state, and federal employment laws. One issue in employment law that has received considerable attention in recent years is the use of criminal history in hiring decisions. Employers may be hesitant to bring on a new hire with a criminal record for a variety of reasons. Laws in many jurisdictions, however, restrict employers’ ability to use criminal history as a factor. New York City has one of the most restrictive laws in the country on this issue, and many jurisdictions are following its lead. New Jersey business owners may find their state’s law less restrictive, but it applies statewide.
Laws limiting businesses’ consideration of criminal history in employment decisions are often known as “Ban the Box” (BTB) laws. They prohibit employers from asking about criminal history during the initial stages of the job application process. The “box” that these laws ban is the checkbox on a typical job application form asking whether an applicant has ever been convicted of a felony or another offense. Checking that box, for some employers, could mean automatic rejection of the application. From job applicants’ point of view, this makes it difficult for certain individuals to find a job, regardless of whether their particular criminal history would have any impact on a particular job. If people with a criminal history cannot find a job, they might be more likely to commit more crimes. See, e.g. N.J. Rev. Stat. § 34:6B-12. Employers need to know their potential liability in this area.
The New York City Human Rights Law (NYCHRL) generally prohibits discrimination on the basis of criminal convictions or arrest records. N.Y.C. Admin. Code §§ 8-107(10), (11). It also prohibits employers from discriminating in job advertisements, such as by stating that a job is only open to people without criminal records. Id. at § 8-107(11-a)(a)(1). Employers cannot inquire about a job applicant’s criminal history until they have made a “conditional offer of employment” to that individual. Id. at § 8-107(11-a)(a)(3).
If the employer inquires about the applicant’s criminal history, they must follow specific steps:
– Make the inquiry in writing;
– Evaluate any information they find according to procedures set forth by state law;
– Notify the applicant in writing if they make an adverse decision based on their analysis of the applicant’s criminal history; and
– Give the applicant a reasonable opportunity to respond. Id. at § 8-107(11-a)(b), N.Y. Corr. L. Art. 23-A.
New Jersey’s Opportunity to Compete Act (OCA), like the NYCHRL, prohibits inquiries about criminal history at the beginning of the job application process, as well as job advertisements that include criminal history restrictions. N.J. Rev. Stat. §§ 34:6B-14, 34:6B-15. Unlike the NYCHRL, employers are not restricted in how they may evaluate criminal history information in the later stages of the hiring process. The OCA also does not allow private causes of action by job applicants. State regulators have sole enforcement authority. Id. at § 34:6B-18.
Business lawyer Samuel C. Berger represents businesses and business owners in New York City and Northern New Jersey. We offer fixed-fee legal service packages, which cover a broad array of issues and help our clients meet their specific legal needs. To schedule a confidential consultation with a knowledgeable and experienced business advocate, contact us today online, at (201) 587-1500, or at (212) 380-8117.
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