Murphy administration targets businesses who ask job applicants about their criminal history

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TRENTON – Acting Attorney General Andrew J. Bruck and Commissioner of the Department of Labor and Workforce Development Robert Asaro-Angelo announced today that fifteen companies have agreed to stop including language about applicants’ criminal history in their job advertisements and/or make other changes to their hiring practices, following an enforcement sweep under New Jersey’s Opportunity to Compete Act or “ban the box” law.

The Opportunity to Compete Act reduces obstacles to employment for people with criminal records by, among other things, barring covered employers from making inquiries regarding a candidate’s criminal history during the initial employment application process and prohibiting them from stating in job advertisements that candidates will not be considered if they have criminal records.

The actions being announced today are part of the largest-ever enforcement sweep under the Opportunity to Compete Act and reflect the Murphy Administration’s commitment to eradicating racial disparities that have been allowed to exist for too long. People of color make up less than half the state’s population but more than three-quarters of its prison population. Because of such racial disparities in the criminal justice system, restrictions on job opportunities for those with criminal histories can fall disproportionately on people of color.

“Here in New Jersey, we believe that a criminal record shouldn’t be a permanent barrier to employment, and that once you’ve paid your debt to society, you’re entitled to a fair shake when looking for work,” said Acting Attorney General Bruck. “With the enforcement sweep we’re announcing today, we’re sending a clear message to employers that they need to comply with the law, so that people with criminal records can reintegrate into the community, join the workforce, and provide for themselves and their families.”

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“Once a person has completed their sentence and has returned to their community, it is incumbent upon us to remove barriers to employment, and to provide job training and career support,” added Commissioner Asaro-Angelo. “Research has shown that a steady job is a strong deterrent to recidivism, and without meaningful work, individuals with prior justice system involvement often recidivate.”

The Opportunity to Compete Act is designed to aid persons with criminal histories to reintegrate into the community, become productive members of the workforce, and provide for their families and themselves.

The law generally prohibits employers from requiring that a job applicant complete any form during the initial application process that asks about their criminal record. It also prohibits an employer from making any oral or written inquiry regarding an applicant’s criminal record during the initial employment application process, which ends when the employer has conducted a first interview.

In addition, the law bars employers from soliciting applicants for jobs through advertising that says the employer will not consider anyone who has a criminal record, with certain exceptions (e.g., where the employment sought or being considered is for a position where a criminal background check is required by law).

Three of the fifteen companies reaching agreements with the State entered into Assurances of Voluntary Compliance after the Department of Labor and Workforce Development found them to have violated the Opportunity to Compete Act and issued them Notices of Violation. All were found to have violated the law’s ban on the use of language in employment advertising that explicitly states that the employer will not consider an applicant who has been arrested or convicted of one or more crimes or offenses.

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The companies entering into Assurances of Voluntary Compliance are:

Under the agreements with the three companies, they must immediately cease any employment advertising that excludes applicants with criminal backgrounds, adopt written policies that are fully compliant with the OTCA, and pay penalties.

Each of the three companies was initially assessed a $1,000 penalty, which was reduced to $250 in light of their good faith cooperation with the investigation and pledges of future compliance. In each case, the unlawful advertising posted by the three employers will be considered a “first violation” and taken into account in setting penalties should any future violations occur.

In addition to the three companies entering into Assurances of Voluntary Compliance after being found in violation of the law, a dozen more companies have agreed to change their job advertising practices without any finding of wrongdoing by them.

Ten of the twelve employers have agreed to eliminate language concerning applicants’ criminal history from their job advertisements going forward, and two have agreed to include explicit explanations of applicable background check requirements. Additionally, one of the twelve companies has agreed to modify their online job application form in use.

These changes to the companies’ job advertisements are designed to reduce the likelihood that individuals with criminal histories will be deterred from applying for employment.

Director of the Division of Wage and Hour Enforcement David Biglin handled this matter for the Department of Labor and Workforce Development.  Assistant Attorney General Mayur P. Saxena, Section Chief Peter A. Basso, and Deputy Attorneys General Mary E. Kenah and John-Paul Proctor of the Affirmative Civil Rights and Labor Enforcement Section in the Division of Law’s Affirmative Civil Enforcement Practice Group represented the Department of Labor and Workforce Development in this matter.

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