By Steven M. Berlin, Esq. and Karen Hart, Esq.

The New Year started off in New Jersey with final regulations intended to clarify the Opportunity to Compete Act (OTCA), better known as New Jersey’s “Ban-the-Box” law. The regulations were released on December 7, 2015 by the New Jersey Department of Labor and Workforce Development.

OTCA prohibits most New Jersey employers from making inquiries regarding an applicant’s arrest or criminal record by means of an employment application, or verbal or written inquiry during the “initial employment application process.” The regulations clarify that the “initial employment application process” begins when an applicant makes an inquiry to an employer regarding a position of employment or job vacancy, or when an employer makes any inquiry about a prospective employment position to an applicant, and concludes when an employer conducts a first interview.

Per the regulations, an “interview” for this purpose must be conducted live and directly between the applicant and the employer, whether in person, or by telephone or video conference. Notably, neither the exchange of e-mails nor the completion of a written or electronic questionnaire constitutes an interview.

Thus, once the employer has completed a single live interview with the applicant, the employer may make inquiries regarding the applicant’s criminal record. Subject to an appropriate analysis, the employer is then free to decline to hire an applicant based on the applicant’s criminal record, unless the criminal record has been expunged or eased by pardon.

Furthermore, the regulations define “inquiries” broadly. Criminal background checks, including Internet searches regarding an applicant’s criminal history, are strictly prohibited before the completion of the initial application process. Employers are further prohibited from retaining a third-party to perform criminal background checks until after the completion of the first interview.

The newly released regulations also shed light on what constitutes a covered “employer”. The OTCA applies to all employers, whether a person, company, corporation, firm, labor organization, or association, doing business in New Jersey with 15 or more employees over 20 calendar weeks. This includes employment and referral agencies, but excludes the United States or any of its departments, agencies, boards, or commissions.

Employers who hire in multiple states using a common application form are not required to create a separate criminal history inquiry-free application for New Jersey, so long as the common application contains a disclaimer stating that applicants in New Jersey are not to answer questions regarding criminal history. However, if an applicant voluntarily discloses information regarding arrest or criminal history during the initial employment application process, the employer may make inquiries regarding the applicant’s criminal record.

Lastly, the requirements of the OTCA do not apply if the employment sought is for a position in law enforcement, corrections, the judiciary, homeland security or emergency management; where a criminal background check is required by law, where any law restricts an employer’s ability to engage in specific business activities based on the employee’s criminal record, or where an arrest or conviction would preclude the applicant from holding such employment as required by law; or designated by the employer to be part of a program designed predominantly to encourage the employment of person who have been arrested or convicted of one or more crimes of offenses.

While the new OCTA regulations address when an inquiry into criminal background can be made, it does not alleviate New Jersey employers from making responsible non-discriminatory decisions based on that information, in accordance with laws such as the federal and New Jersey Fair Credit Reporting Acts and Title VII of the Civil Rights Act of 1964.

New Jersey employers should become familiar with the final regulations and implement mechanisms to ensure their hiring practices are in compliance with the law. Abrams, Gorelick, Friedman & Jacobson, LLP attorneys are available to answer questions and assist your organization in complying with the OTCA and other workplace issues.