Q: Can an employer require an applicant to disclose his/her criminal history in a job application?
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is being rescinded.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.
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