Many employers in New Jersey conduct background checks on their applicants, and some also perform background checks on their existing employees annually. While an employer has the right to check the backgrounds of its employees and applicants to see whether they have criminal histories, there are limits to doing so. Because of the fact that many employers conduct background checks, some people who have criminal records might not apply for certain jobs.
While employers check the backgrounds of their applicants to protect workplace safety and prevent negligent hiring lawsuits, they cannot use the information they receive in a discriminatory way. If you believe you have been discriminated against by a prospective employer because of your criminal record, you should talk to the attorneys at Swartz Swidler.
EEOC guidance on using criminal records to make hiring decisions
The Equal Employment Opportunity Commission or EEOC is the federal agency tasked with enforcing the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. This law prohibits employment discrimination based on the protected status of applicants and employees. The EEOC provides guidance to employers and workers about workplace discrimination.
When employers conduct background checks and find that an applicant has a criminal record, the EEOC states that employers should individually assess the record in relation to the specific positions for which they are hiring. The factors that employers are supposed to consider include the offense’s seriousness, how old it is, and whether it relates to the position for which the applicant has applied. Employers should not deny an applicant a job solely based on his or her having a criminal record.
Fair Credit Reporting Act and criminal records
The second federal law that affects criminal background checks for employment is the Fair Credit Reporting Act or FCRA. This law applies to employers and third-party background check companies they use to complete background checks on prospective employees. Before an employer can conduct a background check, the employer must give the applicant notice in writing. The employer must also obtain the applicant’s written consent before completing the background check. If an applicant refuses to consent to a background check, the employer can refuse to hire him or her.
The FCRA also restricts consumer reporting agencies from reporting certain types of negative information that is older than seven years, including arrests that did not lead to convictions. However, the time restriction does not apply to employers when they are hiring for positions paying at least $75,000 per year. Reporting of convictions is not restricted by the FCRA regardless of their age.
If a background check conducted by a consumer reporting agency reveals negative information, including criminal records, employers must follow the law’s adverse action process before deciding against hiring the person. They must provide notice to the applicant about what was revealed and the name and contact information of the company that conducted the background check. The applicant must also be given notice of his or her right to dispute the information and to obtain a free report within 60 days.
New Jersey Opportunity to Compete Act
New Jersey has a ban-the-box law, which prohibits employers that have at least 15 employees from advertising jobs with statements that people with criminal records will not be considered or asking about the criminal records of applicants on the employment application. Employers are not allowed to ask applicants about their criminal histories until they have had the opportunity for an interview.
There are some exceptions to this law that allow certain employers to ask about criminal history information earlier in the application process, including the following:
- Jobs in corrections, law enforcement, the judiciary, emergency management, or homeland security
- Jobs for which criminal background checks are legally required
- Jobs for which the convictions of certain crimes would make applicants legally ineligible
- Jobs offered by employers with programs designed to hire those with criminal records
Employers can also inquire further if an applicant voluntarily discloses that he or she has a criminal record. The ban-the-box law does not prohibit employers from refusing to hire applicants that have arrests or convictions. However, convictions for which an applicant has received an expungement or pardon cannot be considered.
How do you handle questions about a criminal record?
If you are applying for a job with an employer that has fewer than 15 employees, you might be asked about criminal history information on the application. Even if you apply for a job at a larger company, you can still anticipate being asked about your criminal history after your initial interview.
One of the biggest mistakes you can make is lying about your criminal history on an application or after an interview. Most employers require background checks of their protective employees. If you lie on your application or refuse to answer a question about your criminal record, doing so can cause additional problems. Employers will likely refuse to hire you or rescind a job offer if you lie about your criminal history. You should instead be honest and explain how you have changed your life since your conviction or arrest and how you have grown from the experience.
Get help from an experienced employment lawyer
Discrimination in the workplace is a pervasive issue. If you have been the victim of illegal discrimination based on your criminal record, you should reach out to an experienced employment law attorney at Swartz Swidler. Call us today for a free consultation at (856) 685-7420.