Newark, NJ to Restrict Criminal Background Checks

Author: David B. Weisenfeld, Brightmine Legal Editor

The City of Newark will soon make it more difficult for employers conducting business or accepting job applications from there to ask about a candidate's criminal history. Under the ordinance, effective November 18, 2012, employers with five or more employees may not conduct a criminal background check before making a conditional job offer.

And that's not all. Criminal history inquiries and background checks will be prohibited except where the employer has made a "good faith" determination that such an inquiry is justified. Among other things, this means covered employers must not ask candidates on a job application form whether they have ever been convicted of a crime.

The Newark ordinance also bans employers from denying employment based on the results of a post-offer background check before conducting an individualized assessment of the applicant's criminal record.

In addition, if an employer decides it may conduct a criminal background check, it is limited to seeking information about convictions within eight years from sentencing; disorderly persons convictions or municipal ordinance violations up to five years from sentencing; and pending criminal charges. Employers that run afoul of the ordinance will be subject to fines of $500 to $1,000 per violation.

The ordinance notes that Newark has the largest number of parolees of any US city and that minorities make up more than 86 percent of the city's population. It also states that imposing extra hurdles on individuals with criminal records will disproportionately affect minority applicants and greatly increase the likelihood of recidivism.

The new measure goes beyond New Jersey law, but merits close consideration both because Newark is the Garden State's largest city and because the ordinance comes on the heels of the EEOC's April 2012 Enforcement Guidance about the use of arrest and conviction records for employment purposes.

Additional Resources

EEOC Offers New Guidance on Arrest and Conviction Records

Ban the Box Laws by State and Municipality