- Of Counsel
On August 11, 2014, Governor Chris Christie signed into law “The Opportunity to Compete Act,” also known as the “Ban the Box” bill. In an effort to remove barriers to employment for people with prior criminal records and, in turn, prevent recidivism, the law restricts employers having fifteen or more employees from inquiring into the criminal background of prospective employees and current employees applying for new positions during the “initial employment application process,” meaning the period beginning with an initial employment inquiry and ending when an employer has conducted a first interview. This prohibition extends to inquiries made through employment applications and any oral or written inquiries.
Once the initial employment application process has concluded, an employer may inquire into the criminal history of a prospective employee and is permitted to reject an applicant based upon the applicant’s criminal record. The Act also contains exceptions to the prohibition. For example, if the applicant is applying for a law enforcement position or if the applicant voluntarily discloses any information regarding his or her criminal history during the initial employment application process, the employer is then allowed to inquire about the applicant’s criminal record during the initial employment application process.
The Act specifically cites employer advertisements. Under the new law, employers are forbidden from publishing advertisements stating that applicants who have been arrested or convicted of a crime will not be considered. Local governments are also specifically addressed in the new law. They are prevented from adopting any ordinance, resolution, law or regulation regarding criminal histories in the context of employment, except for ordinances adopted to regulate municipal operations.
The Act sets forth penalties for violations– a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. These penalties are the sole remedy for violations of the Act. In other words, the Act does not create or establish private causes of action by an aggrieved person against an employer who has violated the Act.
Employers should determine if the Ban the Box law applies to them. If applicable, an employer should immediately review (and revise, if necessary) its recruitment and hiring practices and documents for compliance by March 1, 2015.
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In a recent decision (Justin Wild v. Carriage Funeral Holdings, Inc.), the New Jersey Supreme Court determined that an employee who is fired for using medical marijuana outside the workplace may bring a claim for disability discrimination under the New Jersey Law Against Discrimination. Mason, Griffin & Pierson Attorney, Elizabeth Zuckerman, who argued the cause for Amicus Curiae National Employment Lawyers Association of New Jersey, stated the "decision is a win for employees who test positive for marijuana due to their lawful use of medical marijuana outside the workplace."
Jeanne-Marie Scollo has become an Associate with Mason, Griffin & Pierson, P.C. She earned her J.D from Touro College Jacob D. Fuchsberg Law Center. She is a member of the firm's Local Government Law and Litigation Practice Groups. Ms. Scollo brings over nine years of previous legal experience to the firm. She served as Deputy County Counsel for Middlesex County from 2014 to 2019 and was previously a solo practitioner in New Brunswick. Ms. Scollo is admitted in New Jersey and New York and is a member of the New Jersey Institute of Local Government Attorneys, Mercer County, Middlesex County, and New Jersey State Bar Associations.