Effective November 18, 2012, businesses in Newark, New Jersey that have more than 5 employees must comply with a new city ordinance, 12-1630). This ordinance states that employers may not run a criminal background check until after a conditional job offer of employment is made and may only run checks on those employed in “sensitive” positions.
I’ve highlighted important provisions of the new Ordinance below:
- Employers may not conduct criminal background checks on applicants until the employer has extended a conditional job offer
- The ordinance limits criminal background checks only to “sensitive positions”; however, the ordinance fails to provide guidance as to what is considered a “sensitive position”
- Before an employer takes adverse action based on a criminal record found in a report, they must consider 6 specific factors (separate from EEOC guidance); they are:
- The nature of the crime in relation to duties performed under the new position
- Information/documentation pertaining to the degree of rehabilitation and good conduct on the employee’s part or on behalf of the employee
- Whether the prospective job allows an opportunity for the commission of a similar offense
- Whether the circumstances leading to the offense(s) are likely to reoccur
- The amount of time that has elapsed since the last offense(s)
- Any certificate of rehabilitation issued by any state or federal agency
Several of these factors are in line with the recent Equal Employment Opportunity Commission (EEOC) Guidance provided to employers who receive criminal records on a background report.
Who is subjected to this new ordinance? The City defines “employer” as any “person, company, corporation, firm, labor organization, or association” with five (5) or more employees” that “does business, employs persons, or takes applications for employment within the city of Newark.”
Employment in this case has a broad definition; “occupation, vocation, job, work, or employment with or without pay, including seasonal work or contracted work”.
Here are some proactive steps employers can take to comply with this new ordinance:
- Edit/Modify all employment applications to comply with the ban on inquiring about past criminal history.
- Remove any language in job postings and/or advertisements that indicate an applicant’s criminal history will disqualify him/her from employment.
- Revise or create internal policy that will review the six (6) factors and consideration of evidence submitted by candidates or employees.
- Validate and verify that criminal background checks are used only where the position in questions is sufficiently “sensitive”.