Proposed Bill Aims to Stop Bias Against Ex-Cons

Should employers have the right to discriminate against job candidates who have criminal records?

A survey conducted in 2010 revealed that more than 90% of employers perform criminal background checks on some or all job candidates.

To combat discrimination against job applicants with a criminal background, a new bill was introduced into the New Jersey Senate that will regulate how employers can advertise new positions and make hiring decisions.

The proposed bill, titled "The Opportunity to Compete Act," requires employers to comply with specific hiring procedures. Among them:

1.  The employer cannot advertise that employment is contingent upon a criminal background check except in limited circumstances.

2. The employer cannot inquire about an applicant’s criminal background until after the candidate is determined to be qualified for the job and a conditional offer of employment is made. 

3. Once an offer of employment is made, the employer must get the job candidate's consent to conduct a criminal background check.

4. When considering the job candidate, the employer cannot rely on arrest records unless the arrests are pending or the arrests resulted in a conviction.

5. When considering the job candidate, the employer cannot rely on sealed or expunged records.

6. If the job candidate is denied a position on the basis of a past crime or criminal history, the employer will be required to furnish by registered mail a package of documents, including the "Notice of Rights" and a completed two-page form, "Applicant Criminal Records Consideration Form," which memorializes the reasons why the employer refused to hire the job candidate.

7. If the job candidate wishes to "appeal" the denial of the job, the candidate may write to the employer and respond to any inaccuracies or to offer the employer additional considerations. The Act requires that the employer respond to the candidate's written response in writing by filling out Part B of the "Applicant Criminal Records Consideration Form," and return it to the job candidate.

8. The employer must keep copies of these records for at least three years.

If an employer violates any provision under the Act, the Office of the Attorney General, Division on Civil Rights, will have the power to investigate and impose fines.

Depending on the size of the business, failure to comply with any of these provisions may result in a fine anywhere between $500 and $7,500.

Recently, the U.S. Equal Employment Opportunity Commission has been aggressive in going after large corporations for discriminating against job candidates who had criminal backgrounds. To its credit, the Equal Employment Opportunity Commission has been quite successful.

The New Jersey Opportunity to Compete Act breaks new ground by targeting small and medium-sized businesses throughout New Jersey.

What do you think? Is "The Opportunity to Compete Act" a good idea? Are the requirements too onerous on small and medium-sized businesses?

Matthew Stoloff, Esq. represents clients throughout northern and central New Jersey. His practice areas include labor and employment law, special education law, small business matters, and non-compete disputes. For more information, visit his website. This blog article is for informational purposes only and should not be construed as legal advice.