['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
Both the federal and state requirements do not cover employer immunity from disclosure claims.
Arrest record inquiries
In New Jersey, an employer may request an employment or volunteer applicant’s New Jersey criminal history records, including arrest records, from the State Bureau of Investigation, in order to determine the applicant’s qualifications. However, the employer must complete proper forms, obtain the applicant’s signature approving the request, certify that it will give the applicant time to challenge or complete record accuracy, give the applicant time to correct or complete records if requested, and not presume guilt for pending court actions or charges. An employer that uses criminal records to disqualify an applicant or employee must give adequate notice and time to confirm or deny the information’s accuracy. An employer must presume an applicant or employee is innocent of pending court actions or charges. Civil service applicants may be asked about pending charges.
New Jersey requirements are less stringent than the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In New Jersey, an employer may request an employment or volunteer applicant’s New Jersey criminal history records from the State Bureau of Investigation, in order to determine the applicant’s qualifications. However, the employer must complete proper forms, obtain the applicant’s signature approving the request, certify that it will give the applicant time to challenge or complete record accuracy, give the applicant time to correct or complete records if requested, and not presume guilt for pending court actions or charges. An employer that uses criminal records to disqualify an applicant or employee must give adequate notice and time to confirm or deny the information’s accuracy. An employer must presume an applicant or employee is innocent of pending court actions or charges. Civil service applicants may be asked about convictions.
New Jersey’s requirements are less stringent than the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
New Jersey Department of Labor and Workforce Development
Arrest record inquiries
New Jersey Division of Civil Rights Office
Conviction record inquiries
New Jersey Division of Civil Rights Office
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
New Jersey Administrative Code 13:59-1.2, Dissemination for noncriminal justice purposes
New Jersey Administrative Code 13:59-1.6, Limitations on access and use of criminal history record information (CCHRI) for noncriminal justice purposes
New Jersey Statutes Annotated 11A:4-10, Arrests and criminal records
Conviction record inquiries
New Jersey Administrative Code 13:59-1.2, Dissemination for noncriminal justice purposes
New Jersey Administrative Code 13:59-1.6, Limitations on access and use of criminal history record information (CCHRI) for noncriminal justice purposes
New Jersey Statutes Annotated 11A:4-10, Arrests and criminal records
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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