The City of Newark, New Jersey has become the next municipality to enact a new ordinance which prohibits any employer with more than five employees from asking job applicants about their criminal history before or during the job application process. Ordinance 12-630, known as “Ban the Box”, went into effect on November 18, 2012.
Moving forward, employers must remove the question on their job applications inquiring about an applicant’s criminal history. Furthermore, a criminal background check cannot be completed until after the employee is deemed qualified for the position and given a conditional job offer. According to the new ordinance, prior to conducting a criminal background check, the employer must:
- Advise the applicant that upon their written consent, the employer will conduct a criminal background check.
- Let the applicant know that if any adverse action is taken by the employer as a result of a background check, the applicant will have the right and opportunity to present evidence to dispute the findings.
- Provide the applicant with a copy of the new ordinance.
The ordinance also makes clear what an employer can or cannot look for in a background check. They can use indictable offense convictions for up to eight years following a sentencing and they can take into account disorderly conduct convictions for five years following sentencing. Employers can also take into account pending cases until those cases have been dismissed.
On the other hand, employers may not use or ask about:
- An arrest or accusation that isn’t pending or didn’t end up in a conviction.
- Any records that have been pardoned or expunged.
- Any juvenile records or other records that have been sealed.
With regards to adverse action, the ordinance differs slightly from the Fair Credit Reporting Act’s process. If an employer chooses not to hire an applicant based on information obtained on a background check, they must send a single package containing a notification of an adverse decision, a copy of the background check, and a written notice of rejection that complies with the “Applicant Criminal Record Consideration” form. Finally, the employer must inform the applicant that they have the right to request a review and provide them with descriptions of what kinds of evidence may be presented during such a review. Applicants then have 10 days upon receipt of the adverse packet to contact the employer to schedule a review.
Finally, the ordinance makes it illegal for a company to advertise that a previous criminal conviction may end up in being disqualified for a position. The fines for not complying with the new ordinance range from $500 to $1000 depending on the type of violation.
The full text of Ordinance 12-630 can be found here>