On December 20, 2017, New Jersey Gov. Chris Christie signed a bi-partisan bill that effectively makes asking about expunged criminal records off-limits during the initial employment application process.
The law, an amendment to the New Jersey Opportunity to Compete Act (“OTCA”), generally referred to as the “Ban the Box” law, applies to employers with 15 or more employees over 20 calendar weeks who do business, employ persons, or take applications for employment within New Jersey. The OTCA generally prohibits employers from making any oral or written inquiry about an applicant’s criminal background during the initial employment application process.
The amendment, which became effective with signing, goes farther. Now, covered employers are barred from seeking information about the current and expunged criminal records of applicants during the early stages of the employment application process. In addition to barring employers from making oral or written inquiries, the amendment also bars employers from doing online searches for an applicant’s criminal record or expunged criminal record.
In New Jersey, individuals who have been convicted of a prior criminal offense up to and including certain felony offenses may apply to the New Jersey Superior Court to have their record expunged. An individual who was convicted for an indictable offense may present an expungement application after 6 years from the date of his or her most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration. For disorderly persons offenses and petty disorderly persons offenses an individual may present the expungement application after the expiration of a period of 5 years from the date of his or her most recent conviction, payment of fine, satisfactory completion of probation or release from incarceration. The waiting period to expunge juvenile record is decreased from 5 to 3 years.
Employers may ask about criminal records and any expungements after the initial employment application process. Currently, NJ law does not prohibit employers from refusing to hire an individual because of his or her criminal history. However, under the amendment, employers may not refuse to hire an applicant because of a criminal record that has been expunged or erased through executive pardon, unless the refusal is consistent with other applicable laws, rules and regulations.