4/11/2011 ewg

G:\CMULPS\L209\BILLS 10-11\L209_0078.DOC

House Copy

BPU#
LP 255
SR 064
TR xxx
DR N
CR 28

OLS Copy

Public Copy

For Official House Use

BILL NO. __________________________

Date of Intro. _______________________
Ref. _______________________________

NOTE TO
SPONSOR

Notify OLS if you require changes in this document. A revised

copy for introduction will be prepared on the legislative computer
system. Handwritten changes will not appear in the printed bill.

AN ACT concerning post-conviction job applicants and supplementing P.L.1945,

c.169 (C.10:5-12).
Prohibits employers from requiring job applicants to disclose criminal record on
employment application.
PRIME Sponsor

CO-Sponsor

Distric
t

CO-Sponsor

Distric
t

Same as

08/09

Same as

10/11

Suggested allocation: C.10:5-12.7 et seq. through 2011/50

AN ACT concerning post-conviction job

supplementing P.L.1945, c.169 (C.10:5-12).

applicants

and

BE IT ENACTED by the Senate and General Assembly of the

State of New Jersey:
1. The Legislature finds and declares that:
a. The 12,600 people who were released from State correctional
facilities in 2009 represent only a small fraction of New Jersey
residents with criminal records;
b. Individuals with criminal records are a group of job seekers
who are ready to contribute and add to the States workforce;
c. The use of criminal background checks by employers has
increased dramatically in recent years; some estimates suggest that
90 percent of large employers in the United States now conduct
background checks as part of the hiring process;
d. Commercially run background checks commonly contain
errors and inaccuracies and roughly half of background checks
conducted by the Federal Bureau of Investigation also contain
inaccurate or outdated information;
e. Barriers to employment based on criminal records
disproportionately impact Latinos and African Americans;
f. Research shows that offenders who are able to secure
employment upon release from incarceration are significantly less
likely to reoffend;
g. The removal of obstacles to employment for people with prior
convictions will provide economic and social opportunities to a
large group of people living in the State;
h. It is the intent of this legislation to establish guidelines for the
use of criminal background checks by employers, to assist formerly
incarcerated people with successful reintegration into the
community by removing barriers to gainful employment, and to
enhance the health and safety of the community by assisting people
with conviction histories to help provide for themselves and their
families.
2. For the purposes of this act:
Criminal background check means any inquiry into an
applicants criminal history using any private or public record
sources.
Employer means a public or private employer or the
employers agent, representative, or designee.
Initial written application means the first application a job
applicant completes on the basis of which the persons preliminary
eligibility is determined.
Public employer means any person acting directly on behalf of,
or with the knowledge and ratification of: (1) the State, or any
department, division, bureau, board, council, agency or authority of
the State, except any bi-state agency; or (2) any county,
municipality, or any department, division, bureau, board, council,

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agency or authority of any county or municipality, or of any school
district or special purpose district created pursuant to law.
3. No employer shall request on its initial written application
information about an applicants criminal record unless:
a. The applicant is applying for a position for which any federal
or State law or regulation creates a mandatory or presumptive
disqualification based upon a conviction for a specific offense; or
b. The employer is subject to an obligation imposed by any
federal or State law or regulation not to employ persons who have
been convicted of a specific offense.
c. An employer who requests on its initial written application
information about an applicants criminal record pursuant to
subsections a. or b. of this section shall only request information
about the specific convictions which would disqualify an applicant
pursuant to federal or State law or regulation.
4. An employer may inquire about an applicants prior criminal
record during an interview conducted after a review of the initial
written application determines that the applicant has preliminary
eligibility for the position. However, an employer shall not inquire
whether an applicant has ever been arrested, charged with a crime,
convicted of a sealed non criminal offense, or adjudicated as a
juvenile delinquent.
5. Any employer who performs a criminal background check on
an applicant shall:
a. Inform the applicant that a criminal background check may be
requested in connection with the application for employment and
obtain written consent from the applicant before conducting the
criminal background check;
b.
Notify the applicant within 30 days that a criminal
background check was requested and provide the name and address
of the reporting agency or company; and
c. Allow the applicant, upon the applicants written request, to
review the criminal background check report.
6. a. An employer shall not deny employment based solely upon
an applicants prior criminal record unless: (1) there is a direct
relationship between one or more of the previous criminal offenses
and the specific employment sought; or (2) the granting of
employment would involve an unreasonable risk to property or to
the safety or welfare of specific persons or the general public. The
employer shall consider:
(1) The specific duties and responsibilities related to the
employment sought and the bearing, if any, that the criminal offense
for which the person was previously convicted will have on the
applicants ability to perform one or more such duties or
responsibilities;

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(2) Evidence of the applicants rehabilitation including a
certificate of rehabilitation issued to the applicant pursuant to
P.L.2007, c.327 (C.2A:168A-7 et seq.), and
(3) The amount of time which has elapsed since the criminal
offense. An employer shall not deny employment based solely upon
a criminal conviction that occurred more than 10 years before the
date on which the applicant submitted an initial written application
unless the applicant was sentenced to a period of incarceration. In
that case, the employer shall not consider the conviction if more
than 10 years have elapsed since the applicant was released from
the correctional facility. An employer shall not consider a
disorderly persons judgment that occurred more than five years
before the date on which the applicant submitted an initial written
application unless the applicant was sentenced to a period of
incarceration. In that case, the employer shall not consider the
judgment if more than five years have elapsed since the applicant
was released from the correctional facility.
b. If an employer denies employment based solely upon an
applicants prior criminal record, the employer shall within five
days provide the applicant in writing the reasons for such a denial.
This notice shall explain how the conviction that constitutes the
basis for denial of employment: (1) has a direct relationship to the
specific employment sought; or (2) poses an unreasonable risk to
property or to the safety or welfare of specific persons or the
general public given evidence of the applicants rehabilitation and
the amount of time that has elapsed since the criminal offense.
c. An applicant denied employment by a public employer based
solely upon the applicants prior criminal record shall have five
days upon receipt of the notice required pursuant to subsection b. of
this section to challenge the accuracy of the conviction that
constitutes the basis for denial of employment or to provide
additional documentation to address those considerations an
employer is required to make pursuant to subsection a. of this act.
Upon receipt of any additional information submitted by an
applicant, a public employer shall review the information and
documentation and shall reconsider the employment determination.
A final determination shall be submitted in writing to the applicant
within 10 days of receipt of any additional information or
documentation.
7. An employer who violates the provisions of this act shall be
subject to a civil penalty of not more than $10,000 for a first offense
and not more than $20,000 for a subsequent offense brought by the
Division of Civil Rights in the Department of Law and Public safety
in a summary proceeding pursuant to the Penalty Enforcement
Law of 1999, P.L.1999, c.274 (C.2A:58-10 et seq.).
8. This act shall take effect on the first day of the 13 th month
following enactment.

STATEMENT
There is a large population of people in New Jersey who have a
criminal record. The recent increase in the use of commercial
background checks to screen employment applicants makes it
difficult for those people with criminal records to find employment
to provide for themselves and their families. Research suggests that
offenders who are able to secure employment upon release from
incarceration are significantly less likely to reoffend. This bill
would address the use of background checks to disqualify certain
otherwise qualified applicants from employment in this State.
Specifically, this bill would prohibit employers from requesting
information about an applicants criminal record on an initial
written application. An employer would be permitted to inquire
about an applicants prior convictions during an interview.
In addition, the bill would require an employer that conducts
criminal background checks to notify potential applicants that a
background check may be conducted and obtain written consent
before any criminal background check is performed. The employer
would be required to allow the applicant to review the report.
An employer, under the bill, would be prohibited from denying
an applicant employment solely on the basis of the applicants
criminal record unless there was a direct relationship between the
convictions and the employment sought, or if granting the
employment would involve an unreasonable risk to property or
safety. To determine if an applicant could be denied employment
based upon criminal record, the employer would be required to
document that it considered how the specific duties of employment
related to the prior convictions, evidence of the applicants
rehabilitation, and the amount of time since the offense was
committed.
An employer who denied employment based solely upon an
applicants criminal conviction would need to provide a written
notification and explanation to the applicant within five days.
Under the bill, an applicant denied employment by a public
employer would have five days to challenge the accuracy of the
conviction that constituted the basis for denial of employment or to
provide additional documentation that the conviction did not have a
direct relationship to the position sought or pose a risk to property
or safety. A public employer would be required to review any
supplemental information and make a final employment decision
within 10 days.
The penalty for a violation of the bill would be a civil penalty of
not more than $10,000 for a first offense and not more than $20,000
for a second or subsequent offense.

Prohibits employers from requiring job applicants to disclose

criminal record on employment application.