Q: Can an employer require an applicant to disclose his/her criminal history in a job application?
A: The answer is similar for both NYC and NJ employers.  As of last week, under the New York City Fair Chance Act, NYC employers with four or more employees may no longer inquire about an applicant’s criminal history on employment applications or during interviews, nor may such employers search public records or databases, or conduct or use background checks containing criminal records before making a conditional offer of employment to the applicant. After extending a conditional job offer, employers are permitted to inquire about an applicant’s criminal history. If the employer wishes to withdraw the offer after learning about the person’s criminal background, the employer must provide the applicant with a written explanation/analysis as to why the offer is being rescinded. The employer must hold the job open and allow the applicant at least three business days to respond and address the employer’s stated concerns. There are exemptions for jobs where criminal backgrounds would present an automatic bar to employment, including law enforcement and other sensitive, security-related positions.
As for New Jersey, the “Opportunity to Compete Act” prohibits employers with 15 or more employees from requiring applicants to complete a job application that requires disclosure of their criminal history. Employers may run a criminal background check on an applicant after the first interview or after a conditional offer of employment has been extended but cannot consider a criminal record that has been expunged. There are exceptions to the prohibition on criminal history inquiries before the first interview: if an applicant brings up his or her criminal history during the initial application process, the employer may make a reasonable, limited inquiry regarding only the criminal history that the applicant disclosed; if the applicant is being considered for a position in law enforcement, corrections, the judiciary, homeland security or emergency management or where a criminal background check is required by law, rule or regulation, the employer must make a criminal history inquiry; and if the applicant may be legally precluded from holding the position by virtue of his or her criminal background, and where any law, rule or regulation restricts an employer's ability to engage in specified business activities based on the criminal records of its employees, employers can make such an inquiry.
Both the NYC Fair Chance Act and the NJ Opportunity to Compete Act prohibit employers from posting job advertisements indicating that persons who have been arrested or convicted of a crime will not be considered for employment.

*Posting and viewing of the information on this website is not intended to constitute legal advice or create an attorney-client relationship. Read More of the Disclaimer

Back to Articles and Updates