In December 2013, we wrote about the Opportunity to Compete Act, which had been introduced by the New Jersey Legislature to impose significant restrictions on employers’ use of criminal background checks in connection with the hiring process. On February 24, the New Jersey Legislature withdrew the bill and re-introduced a new version. (A copy of the new version of the bill is available here).
There are some significant differences between the new version and the older version of the bill. Most of the changes are positive for employers, which may be an attempt by the Legislature to create a version of the bill with a higher likelihood of being signed into law by Governor Chris Christie. Some of the major differences are as follows:
· In addition to excluding domestic services employees, the new version excludes independent contractors, directors, and trustees. But it includes interns and apprentices.
· The new version applies to employers with 15 or more employees over 20 calendar weeks (the old version was 5 employees).
· If a candidate voluntarily discloses his/her criminal history, the new version permits an employer to make a reasonable limited inquiry about the criminal history disclosed (an employer could not do so in the prior version).
· If a candidate does not consent to a criminal history inquiry after the employer provides a conditional offer of employment, the new version permits the employer to withdraw the conditional offer of employment.
· The new version permits consideration of convictions for conduct in another state over the past 10 years that would be a crime of the first through fourth degrees in New Jersey (the prior version permitted consideration of such conduct even if it did not result in a conviction). The new version also permits consideration of convictions for disorderly persons offenses for the past 5 years.
· The new version expands the crimes that an employer may consider regardless of when they occurred to include: criminal homicide, attempted murder, arson and arson-related offenses, sex offenses, robbery, kidnapping, human trafficking, possession of weapons during the commission of crimes, second degree burglary, second or third degree aggravated assault, terrorism, or any crimes of a nature substantially similar to those listed that were committed in another jurisdiction.
· The new version states that if any part of the candidate’s criminal history may be considered then all prior disorderly persons convictions and indictable offenses may be considered.
· The new version takes out the confidentiality provisions, which had required employers to keep criminal history information confidential and not to share it with anyone unless required by law to do so.
· The new version clarifies the negligent hiring provisions and sets the standard for negligent hiring claims based on an employee’s criminal record as “grossly negligent.”
· The new version eliminates any private cause of action under the Act.
· The new version provides that good faith is a valid defense to an employer’s initial violation.
We will monitor the progress of the new proposed version of the Act and provide updates here as they occur.