On December 7, 2015, the New Jersey Department of Labor and Workforce Development (NJDOL) released the final regulations and guidance that apply to the state-wide “ban the box” law known as The Opportunity to Compete Act which originally went into effect on March 1st of last year. The guidance has clarified some of the key provisions under the law as follows:

  • Employers with 15 or more employees, regardless of where the employees actually reside, are prohibited from inquiring about an applicant’s criminal history, including conducting internet searches, until after an initial interview has taken place;
  • It is unlawful to state in job advertisements that applicants with convictions or criminal histories will not be considered;
  • An interview as any live contact with the applicant either in person, by telephone, or by videoconference to discuss the position or the applicant’s qualifications;
  • Multi-state employers are allowed to continue the use of a standardized application which includes a question regarding criminal history, provided the question is preceded by a statement that directs applicants for a position which will be located either in whole or in substantial part within New Jersey not to answer the question;
  • The law extends to all direct employees, including interns and apprentices. Independent contractors, however, are not protected and employers are allowed to inquire about their criminal history without restriction. If the question arises as to whether the applicant is seeking a position as an employee or independent contractor, the Department of Labor considers the following criteria:
    • the level of control over the individual performing services;
    • whether the service is outside the usual course of the business, or outside the place of business, of the employer; and
    • whether the applicant is “customarily engaged in an independently established trade, occupation, profession, or business
  • DWI/DUI and Motor Vehicle Violations Records are considered criminal records and, therefore employers are not allowed to consider them until after the initial interview.

Full text of the New Jersey law

To read about other Ban the Box laws click here.

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