Bill Text: NJ A2300 | 2012-2013 | Regular Session | Introduced
Bill Title: Prohibits employers from requiring job applicants to disclose criminal record on employment application.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2012-02-02 - Introduced, Referred to Assembly Law and Public Safety Committee [A2300 Detail]
Download: New_Jersey-2012-A2300-Introduced.html
Sponsored by:
Assemblywoman BONNIE WATSON COLEMAN
District 15 (Hunterdon and Mercer)
SYNOPSIS
Prohibits employers from requiring job applicants to disclose criminal record on employment application.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning post-conviction job applicants and supplementing P.L.1945, c.169 (C.10:5-12).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares that:
a. The 12,600 people who were released from State correctional facilities in 2009 represent only a small fraction of New Jersey residents with criminal records;
b. Individuals with criminal records are a group of job seekers who are ready to contribute and add to the State's workforce;
c. The use of criminal background checks by employers has increased dramatically in recent years; some estimates suggest that 90 percent of large employers in the United States now conduct background checks as part of the hiring process;
d. Commercially run background checks commonly contain errors and inaccuracies and roughly half of background checks conducted by the Federal Bureau of Investigation also contain inaccurate or outdated information;
e. Barriers to employment based on criminal records disproportionately impact Latinos and African Americans;
f. Research shows that offenders who are able to secure employment upon release from incarceration are significantly less likely to reoffend;
g. The removal of obstacles to employment for people with prior convictions will provide economic and social opportunities to a large group of people living in the State;
h. It is the intent of this legislation to establish guidelines for the use of criminal background checks by employers, to assist formerly incarcerated people with successful reintegration into the community by removing barriers to gainful employment, and to enhance the health and safety of the community by assisting people with conviction histories to help provide for themselves and their families.
2. For the purposes of this act:
"Criminal background check" means any inquiry into an applicant's criminal history using any private or public record sources.
"Employer" means a public or private employer or the employer's agent, representative, or designee.
"Initial written application" means the first application a job applicant completes on the basis of which the person's preliminary eligibility is determined.
"Public employer" means any person acting directly on behalf of, or with the knowledge and ratification of: (1) the State, or any department, division, bureau, board, council, agency or authority of the State, except any bi-state agency; or (2) any county, municipality, or any department, division, bureau, board, council, agency or authority of any county or municipality, or of any school district or special purpose district created pursuant to law.
3. No employer shall request on its initial written application information about an applicant's criminal record unless:
a. The applicant is applying for a position for which any federal or State law or regulation creates a mandatory or presumptive disqualification based upon a conviction for a specific offense; or
b. The employer is subject to an obligation imposed by any federal or State law or regulation not to employ persons who have been convicted of a specific offense.
c. An employer who requests on its initial written application information about an applicant's criminal record pursuant to subsections a. or b. of this section shall only request information about the specific convictions which would disqualify an applicant pursuant to federal or State law or regulation.
4. An employer may inquire about an applicant's prior criminal record during an interview conducted after a review of the initial written application determines that the applicant has preliminary eligibility for the position. However, an employer shall not inquire whether an applicant has ever been arrested, charged with a crime, convicted of a sealed non criminal offense, or adjudicated as a juvenile delinquent.
5. Any employer who performs a criminal background check on an applicant shall:
a. Inform the applicant that a criminal background check may be requested in connection with the application for employment and obtain written consent from the applicant before conducting the criminal background check;
b. Notify the applicant within 30 days that a criminal background check was requested and provide the name and address of the reporting agency or company; and
c. Allow the applicant, upon the applicant's written request, to review the criminal background check report.
6. a. An employer shall not deny employment based solely upon an applicant's prior criminal record unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought; or (2) the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific persons or the general public.
b. The employer shall consider:
(1) The specific duties and responsibilities related to the employment sought and the bearing, if any, that the criminal offense for which the person was previously convicted will have on the applicant's ability to perform one or more such duties or responsibilities;
(2) Evidence of the applicant's rehabilitation including a certificate of rehabilitation issued to the applicant pursuant to P.L.2007, c.327 (C.2A:168A-7 et seq.), and
(3) The amount of time which has elapsed since the criminal offense. An employer shall not deny employment based solely upon a criminal conviction that occurred more than 10 years before the date on which the applicant submitted an initial written application unless the applicant was sentenced to a period of incarceration. In that case, the employer shall not consider the conviction if more than 10 years have elapsed since the applicant was released from the correctional facility. An employer shall not consider a conviction of a disorderly persons offense that occurred more than five years before the date on which the applicant submitted an initial written application unless the applicant was sentenced to a period of incarceration. In that case, the employer shall not consider the conviction if more than five years have elapsed since the applicant was released from the correctional facility.
c. If an employer denies employment based solely upon an applicant's prior criminal record, the employer shall within five days provide the applicant in writing the reasons for such a denial. This notice shall explain how the conviction that constitutes the basis for denial of employment: (1) has a direct relationship to the specific employment sought; or (2) poses an unreasonable risk to property or to the safety or welfare of specific persons or the general public given evidence of the applicant's rehabilitation and the amount of time that has elapsed since the criminal offense.
d. An applicant denied employment by a public employer based solely upon the applicant's prior criminal record shall have five days upon receipt of the notice required pursuant to subsection b. of this section to challenge the accuracy of the conviction that constitutes the basis for denial of employment or to provide additional documentation to address those considerations an employer is required to make pursuant to subsection a. of this section. Upon receipt of any additional information submitted by an applicant, a public employer shall review the information and documentation and shall reconsider the employment determination. A final determination shall be submitted in writing to the applicant within 10 days of receipt of any additional information or documentation.
7. An employer who violates the provisions of this act shall be subject to a civil penalty of not more than $10,000 for a first offense and not more than $20,000 for a subsequent offense brought by the Division of Civil Rights in the Department of Law and Public Safety in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
8. This act shall take effect on the first day of the 13th month following enactment.
STATEMENT
There is a large population of people in New Jersey who have a criminal record. The recent increase in the use of commercial background checks to screen employment applicants makes it difficult for those people with criminal records to find employment to provide for themselves and their families. Research suggests that offenders who are able to secure employment upon release from incarceration are significantly less likely to reoffend. This bill would address the use of background checks to disqualify certain otherwise qualified applicants from employment in this State.
Specifically, this bill would prohibit employers from requesting information about an applicant's criminal record on an initial written application. An employer would be permitted to inquire about an applicant's prior convictions during an interview.
In addition, the bill would require an employer that conducts criminal background checks to notify potential applicants that a background check may be conducted and obtain written consent before any criminal background check is performed. The employer would be required to allow the applicant to review the report.
An employer, under the bill, would be prohibited from denying an applicant employment solely on the basis of the applicant's criminal record unless there was a direct relationship between the convictions and the employment sought, or if granting the employment would involve an unreasonable risk to property or safety. To determine if an applicant could be denied employment based upon the criminal record, the employer would be required to document that it considered how the specific duties of employment related to the prior convictions, evidence of the applicant's rehabilitation, and the amount of time since the offense was committed.
An employer who denied employment based solely upon an applicant's criminal conviction would need to provide a written notification and explanation to the applicant within five days.
Under the bill, an applicant denied employment by a public employer would have five days to challenge the accuracy of the conviction that constituted the basis for denial of employment or to provide additional documentation that the conviction did not have a direct relationship to the position sought or pose a risk to property or safety. A public employer would be required to review any supplemental information and make a final employment decision within 10 days.
The penalty for a violation of the bill would be a civil penalty of not more than $10,000 for a first offense and not more than $20,000 for a second or subsequent offense.
