There is a sweeping trend of new employment laws surfacing around the United States that will require employers to delay any knowledge of a candidate’s criminal history until it has been determined that the candidate has met all other requirements of the job. Employers who currently conduct criminal background checks prior to extending a written job offer may now need to change their workflow and interview candidates who are otherwise qualified. Of course, exceptions do apply for positions that require licensure and certification.

This “Ban the Box” trend has been adopted by at least 13 states as well as local municipalities that have passed legislation that requires employers to remove any questions about a person’s criminal history on their employment applications. Additionally, employers may not publish employment advertisements indicating that a person with one or more crimes, or has been arrested, is not eligible for a job. New Jersey has become one of the latest states to implement its version of the law, which goes into effect on March 1, 2015. In addition to the 13 states, local municipalities including San Francisco, Washington D.C., Seattle, Philadelphia, Baltimore and Buffalo have all implemented similar laws.

What Caused “Ban the Box” Laws to Start Taking Shape?

Most job applications require candidates to indicate if they “have been convicted of any criminal offense in the past.” If the candidate has been convicted of a criminal offense, the job application will require the job seeker to describe the nature of the offense, date of the offense, location of the court that processed the offense and the outcome. Many Recruiters, Human Resource Managers and Hiring Managers also ask questions about a job-seeker’s criminal history during the interview process. As a result of inquiries regarding job seekers’ criminal histories, many potentially qualified candidates get passed up and are eliminated before they have had an opportunity to fully demonstrate their qualifications to successfully perform the job. Individuals with criminal histories who are trying to re-enter and become a positive contributor to society have found it increasingly difficult to change his or her life. “Ban the Box” laws are designed to eliminate employment discrimination for those with criminal histories.

New Jersey’s “Opportunity to Compete Act

New Jersey’s version of the “Ban the Box” law is called the Opportunity to Compete Act and will go into effect on March 1, 2015. The Act is considered more of a procedural practice and does not prevent employers from conducting background checks. It does delay the criminal background check until later in the hiring process so as to encourage employers to focus on the candidate’s skills and qualifications for the position. The candidate’s criminal history becomes secondary information once the employer decides to move forward with a particular candidate due to his or her skills and qualifications.

New Jersey’s Opportunity to Compete Act does not force an employer to hire anyone with a criminal record or an unqualified job-seeker. To sum it up, this Act asks employers to consider an applicant’s complete application and give someone who may have changed his or her life around the opportunity to get hired by an employer. Employers who have 15 or more employees must wait until after an applicant has received a conditional offer from the employer, in order to ask about and conduct an investigation of the candidate’s criminal history.

How Will ‘Ban the Box’ Affect Employers Recruiting Practices?

It is apparent that the Opportunity to Compete Act and other ‘Ban the Box’ legislatures will change how employers recruit, their budgets and hiring timelines.  The WorkPlace Group will take a look at what you, as an employer, should know about ‘Ban the Box’ acts as we move into 2015. Stay tuned for Part II to learn what actions, if any, you should prepare for.

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