What Does It Mean for Businesses?
The Garden State became the 13th State to take part in the sweeping Ban the Box movement when Governor Christie signed The Opportunity to Compete Act into law on August 11, 2014.
The “Opportunity to Compete Act,” or commonly known as “Ban the Box,” is designed to assist former-criminal offenders move past the barrier of discrimination when trying to reintegrate into society and the workforce.
What does it mean for businesses?
When the law goes into effect March 201, public and private businesses can no longer inquire about a candidate’s criminal records during the initial phase of the application process—basically “banning the box” on job applications. In other words, employers cannot make any oral or written inquiries regarding an applicant’s criminal record during the initial employment process. This applies to any circulation, mailing, posting, or any other form of publication, utilizing any media, as the law states.
Job and housing discrimination have been identified as the leading obstacles ex-offenders face when trying to work their way back into the community. This led to the “Ban the Box” campaign which started in 2004 and has since led to the removal of the conviction history question from job applications in more than 45 cities and counties across the U.S. This includes New Jersey’s Atlantic City and Newark, which both adopted city laws in the past two years.
According to The Opportunity to Compete Act, an estimated 65 million U.S. adults with criminal records face a barrier to employment based on their criminal past. In New Jersey, employment advertisements frequently include language regarding criminal records which is found to actually dissuade people from applying.
The Opportunity to Compete Act will now give those with an arrest or jail time record a chance to not be instantly overlooked by a potential employer. Research shows that a criminal record reduces the chance of a job callback or offer by nearly 50 percent, according to the National Employment Law Project.
With any new law, misconceptions can arise about what it means for employers going forward. Will employers not be able to conduct any background checks at all during the hiring process? Does the law force employers to hire ex-offenders?
The answer is no.
The Opportunity to Compete Act will NOT entirely eliminate the process of background checks, nor will it require businesses to hire former-criminal offenders. In fact, the law protects employers if they choose to not hire a candidate due to his or her criminal background.
What it does do is keep employers from asking questions about one’s criminal history until after the initial interview process. Once that first step is completed, criminal background checks can be conducted normally and as fully as the employer so chooses.
There are some exceptions to the law. Companies with less than 15 employees are unaffected by The Opportunity to Compete Act. Also the law does not apply in the fields of law enforcement, corrections, the judiciary, homeland security and emergency management. Employers can also be exempt if an applicants’ criminal history would interfere with the duties of the job.
The law also protects employers if an applicant voluntarily offers information about his or her criminal history during the initial interview process.
The Act states its overall intention is to improve the economic viability, health and security of New Jersey communities while assisting those with criminal records get back to the workforce and provide for their families. Provided the movement does help the economy in New Jersey, it could possibly have positive effects nationwide as well.
Let’s consider some facts. Ex-offenders, predominantly males, cause an impact on the U.S. economy in the form of lost output of goods and services. In Gross Domestic Product (GDP) terms, this means a loss of $57 to $65 billion per year as per 2008 figures, according to the Center for Economic and Policy Research.
Statistics also show that unemployed ex-offenders are four times more likely to commit crimes. It costs $23,429 annually to house an inmate in federal prison. If this anti-discrimination movement helps put ex-offenders back to work, it could have positive effects on the economy by reducing prison costs.
Time will tell as to how much of an effect The Opportunity to Compete Act will have. In the meantime, business owners should use the next few months to prepare for changes by updating job applications and processes to meet the requirements of the new law.
It may also be beneficial for businesses to consult their employment attorney in regards to the new law’s provisions to ensure that new hiring practices will be in compliance with The Opportunity to Compete Act.
Paul T. Fader is a named partner, member of the Executive Committee, and Chair of the government, regulatory affairs and lobbying practice group at Florio Perrucci Steinhardt and Fader, LLC. Paul represents numerous public and private clients, concentrating his practice in the areas of governmental affairs, redevelopment, real estate and land use law, and construction and public contracting law. Prior to joining the firm, Paul served as Chief Counsel to New Jersey Governors Richard J. Codey and James E. McGreevey, where he provided legal counsel to, and representation for, the Governor of the State of New Jersey on issues involving all aspects of state government. Contact Paul at PFader@fpsflawfirm.com