The New Jersey Department of Labor Issues Final Ban-the-Box Regulations

On December 7, 2015, the New Jersey Department of Labor and Workforce Development (the “NJDOL”) issued regulations clarifying the requirements of New Jersey’s Opportunity to Compete Act (the “Ban the Box Law”), which take effect immediately.  The Ban the Box law generally prohibits New Jersey employers from inquiring about a job applicant’s criminal history during the “initial interview process.”  The regulations answer three important questions: (1) what is the “initial interview process”? 2) can a New Jersey employer use one standard job application when hiring employees in those states that allow early criminal history inquiries? and 3) which New Jersey employers are subject to the Ban the Box Law?

The NJDOL’s recent regulations provide parameters to define the initial employment application process.  The process begins when an applicant makes inquiries about a job or when an employer makes inquiries to the applicant about a potential job.  The process ends when the employer conducts a first interview.  This first interview need not be conducted in person.  The regulations clarify that an interview is “any live direct contact by the employer with the applicant … to discuss the employment being sought to the applicant’s qualifications.”  This means that the employer may conduct the first interview in person, by phone, or by video conference.  However, under the regulations, e-mail exchanges between the applicant and employer do not constitute a first interview.  The submission of written or electronic questionnaires also does not rise to the level of a first interview.  After the employer completes this initial employment application process, the employer may proceed to make inquiries about the applicant’s criminal history.

The regulations also tackle the issue of using one standard application in various states, some of which may allow criminal history inquiries at any stage in the hiring process.  The regulations clarify that in these standard applications for multi-state use, New Jersey employers may inquire about criminal history.  However, the application must state “[t]hat an applicant for a position the physical location of which will be in whole, or substantial part, in New Jersey is instructed not to answer this question.”

Finally, the regulations provide clarification on which New Jersey employers are subject to the Ban the Box Law.  This law applies to companies with 15 or more employees over 20 calendar weeks, whether or not those 15 employees work in New Jersey.  If the employer takes employment applications in New Jersey, conducts business in this state, or employs individuals in this state, and the employer employees 15 individuals company-wide, than it is subject to the Ban the Box Law. In light of these clarifying regulations, now is the time to update employment applications, especially those used for multi-state hiring and to train supervisors and human resources personnel on the nuances of New Jersey’s Ban the Box Law.  For more information, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practices Group, at dmastellone@genovaburns.com or Brigette N. Eagan, Esq., Counsel in the firm’s Human Resources Practices Group, at beagan@genovaburns.com.