On August 11, New Jersey Gov. Chris Christie signed into law the Opportunity to Compete Act, which will prevent employers from asking job applicants about their criminal records until after the first job interview. This makes New Jersey the fifth state to expand "ban the box" protections to the private sector. The new law takes effect on March 1, 2015, and will preempt any similar local laws, such as the one passed in Newark in 2012.
The act applies to entities doing business in New Jersey and employing 15 or more employees over 20 calendar weeks. That number excludes domestic services employees, independent contractors, directors and trustees but includes interns and apprentices.
The act's two prohibitions are that employers cannot (1) mention criminal history in any job advertisement or (2) make verbal or written inquiries regarding an applicant's criminal record during the time period between an applicant's first inquiry about employment and the conclusion of the first interview. Thereafter, employers are free to inquire about, and refuse to hire an applicant because of, his or her criminal record, unless the relevant crime has been expunged and provided that such a decision is consistent with other applicable laws, rules and regulations (such as anti-discrimination laws and the Fair Credit Reporting Act). Employers, however, may legally ask about criminal histories sooner if an applicant voluntarily divulges the information. Employers may also legally inquire about criminal histories sooner if the applicant is seeking employment in law enforcement, corrections, the judiciary, homeland security, emergency management, or other positions for which a criminal background check is required by law, rule or regulation, such as banking.
The New Jersey Division on Civil Rights will be tasked with enforcement of the act and will be empowered to impose civil penalties up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation. Importantly, the act does not provide for a private cause of action.
The act underwent several major revisions before it passed the full New Jersey Senate and Assembly in June. Prior versions placed more onerous restrictions and procedures on employers, such as requiring conditional job offers before criminal background checks could be conducted, enumerating specific criminal offenses that could be considered by employers, and mandating specific procedural requirements and forms to demonstrate proper balancing of prior criminal histories against mitigating factors.
Employers have several months to familiarize themselves with the act's requirements and ensure compliance, including by removing any criminal background-related questions from their employment applications.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
On May 13, Francine Esposito will give an Employment Law Update presentation to the HR Committee of the NJ Bankers Association. She will discuss the latest developments in employment law, including but not limited to paid sick leave requirements, EEOC initiatives, recent case law and pending legislation affecting employers.
On April 13, Day Pitney will hold a CLE that will cover two topics at Quest Diagnostics Incorporated, at 3 Giralda Farms in Madison, New Jersey. Benjamin E. Haglund, John W. Cerreta, Thomas A. Zalewski and Sylvia–Rebecca Gutierrez will teach a course on Contract & Tort Law Update for the Health Care Practitioner. The course will cover contract and tort issues for health care practitioners with special emphasis on genetic testing in tort litigation and potential pitfalls regarding provisions contained in contracts with hospitals, health plans, and suppliers. Theresa Kelly and Rachel Gonzalez will also teach a course on Employment Law, which will cover employment law issues with special emphasis on recent National Labor Relations Board activities and the Family and Medical Leave Act.
Francine Esposito and Arielle Sepulveda wrote an article, “Federal Contractors Will Have To Provide Paid Sick Time,” for Pratt’s Government Contracting Law. The article explains the policies federal contractors and subcontractors need to have in place by January 1, 2017 to meet the requirements of a recent Executive Order signed by President Barack Obama for paid sick time. Specifically, federal contractors and subcontractors must allow their employees to earn at least seven days of paid sick time each year if they do not already have policies in place that provide the same amount.
Rachel Gonzalez was mentioned in an article, "Unions set to begin voting on NJ Transit rail contract," in NJ.com. Gonzalez provided an explanation of the approval process concerning union agreements in connection with the NJ Transit rail unions voting on the proposed settlement to avert a strike.
Kate Coffey, Rachel Gonzalez and Peter Wolfson were mentioned in the "New Partners Yearbook 2016" in New Jersey Law Journal. This is the Law Journal's annual yearbook devoted to recognizing both newly promoted partners and newly hired lateral partners at law firms in New Jersey.
Patrick McCarthy was quoted in an article, “Former exec's conviction puts spotlight on safety for high-risk industries; Deadly mine explosion resulted in underwriting rethink by insurers,” in Business Insurance. McCarthy was quoted in connection with the significance of a case, in which Don Blankenship, the former CEO of Massey Energy Co., was acquitted of all felony charges, but convicted of a misdemeanor conspiracy charge for willfully violating U.S. mine health and safety standards that resulted in a 2010 explosion that killed 29 coal miners in West Virginia.
The Day Pitney alert, "Federal Contractors Must Provide Paid Sick Time in the Future," authored by Francine Esposito and Arielle B. Sepulveda was referenced in a Staffing Industry Analysts article, "New Bill Would 'Ban the Box' for Federal Contractors." In addition to the Fair Chance Act, the article discusses the executive order signed by President Obama that requires federal contractors to provide paid sick time leave. Esposito and Sepulveda noted that the requirement applies to all federal contracts awarded on or after January 1, 2017.
Stamford, Conn., August 24, 2015 - Day Pitney is pleased to announce that 68 attorneys have been selected for inclusion in the 2016 Best Lawyers in America. Best Lawyers ranks lawyers through peer-review surveys, and has been published annually since 1983.