Arrest Record Discrimination Laws in New Jersey

Federal law does not directly prohibit arrest record discrimination, but the EEOC has issued guidance stating that criminal history exclusions in hiring may violate Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) if they have a disparate impact on protected classes (particularly African American and Latino workers) without business necessity. The EEOC's 2012 guidance on the use of arrest and conviction records advises employers to evaluate the nature, gravity, and timing of the offense and consider whether rehabilitation has occurred. Federal contractors under 41 CFR Part 60 (Executive Order 11246) face additional scrutiny regarding criminal background policies.

However, federal law does permit employers to conduct background checks and consider conviction records (distinct from arrests). The Fair Credit Reporting Act (15 U.S.C. § 1681) regulates how employers may use third-party background check companies and requires them to notify applicants before running checks. Federal law does not provide a blanket prohibition on hiring decisions based on criminal convictions, though agencies like the FCRA require accuracy and fair process. Many states, including New Jersey, have enacted stronger protections that federal law does not provide.

New Jersey law is significantly stronger than federal law in protecting workers from arrest record discrimination. Under N.J.S. § 34:6B-1, commonly known as the conviction and arrest record law, employers are prohibited from denying employment, advancement, or any employment benefit based on an arrest that did not result in conviction. This is a blanket protection: an employer cannot use the mere fact of an arrest to disqualify a candidate.

Additionally, N.J.S. § 2A:52A-1 et seq. grants individuals the right to expunge (seal) arrest records if the charges were dismissed, the person was acquitted, or the person was found not guilty. Once expunged, you may legally state that the arrest did not occur. This is a critical protection because it allows you to truthfully deny having an arrest record on job applications once the record is sealed.

For convictions, N.J.S. § 2C:52-2(b) establishes a timeline: after five to ten years depending on the severity of the crime, individuals may petition to expunge certain conviction records. For minor crimes, the timeline is shorter. Once a record is expunged, employers may not hold it against you in hiring decisions.

The state law applies to all employers in New Jersey with no minimum employee threshold. This is broader than federal law, which only applies to employers with 15 or more employees under Title VII. New Jersey's Division on Civil Rights (NJDCR), which operates under the New Jersey Law Against Discrimination (N.J.S. § 10:5-1 et seq.), enforces these protections. Violations can result in compensatory damages, punitive damages (up to $25,000 or more in egregious cases), back pay, and attorney fees. The burden shifts to the employer to prove business necessity if they claim a legitimate, non-discriminatory reason for exclusion based on criminal history.

New Jersey law contains important exceptions and limitations. First, the prohibition applies to arrests that did not result in conviction. If you were convicted, the employer may consider the conviction, though they must evaluate the nature, gravity, and timing of the offense under the case law principles established in State v. Gadsden and refined in administrative guidance from NJDCR.

Second, even for convictions, employers cannot use a conviction as an automatic bar to employment. They must conduct an individualized assessment of whether the conviction is job-related and consistent with business necessity. For example, a conviction for theft might be relevant to a position handling cash, but may be less relevant to a position as a software engineer. The burden is on the employer to justify the exclusion.

Third, employers in certain regulated industries (financial services, childcare, elder care, education, healthcare) may have statutory or regulatory requirements to conduct background checks and exclude individuals with certain convictions. These industry-specific rules can override general employment law, but they must be based on explicit regulatory requirements, not employer preference.

Fourth, if an arrest record has been expunged, you have the right to deny that it ever occurred, and employers cannot hold the arrest against you. However, you may still be required to disclose arrests for certain regulated positions (law enforcement, public office) if the law specifically requires disclosure of sealed records for that role.

Fifth, the law does not require employers to hire someone; it only prevents them from using arrest records as the sole basis for rejection. An employer can still reject a candidate for other legitimate business reasons (qualifications, experience, performance).

Sixth, employers do not have an affirmative duty to expunge records on your behalf. You must petition the court to expunge an arrest or conviction record. Once sealed, employers generally cannot access it through routine background checks, but you should inform the employer in writing of the expungement.

Step 1 — Document Everything. Keep detailed records of the job application, date applied, the position you applied for, and any rejection communication. Save emails, rejection letters, and interview notes. If an interviewer or hiring manager mentioned your arrest record as a reason for rejection, document the date, time, and exact words used. Obtain a copy of your arrest record from the New Jersey State Police Records and Identification Bureau or through an OPRA (Open Public Records Act) request. If you were acquitted, charges were dismissed, or you were found not guilty, gather court documentation proving this outcome.

Step 2 — Attempt Internal Resolution (Optional but Recommended). Send a written letter to the employer's HR department or hiring manager requesting reconsideration of your application. Cite N.J.S. § 34:6B-1 and explain that your arrest did not result in conviction and therefore cannot be used as grounds for denial. Provide copies of court records proving the charge was dismissed, you were acquitted, or you were found not guilty. Keep a copy of this letter and proof of delivery. If the employer responds positively, document the resolution. If they do not respond within 10 business days or deny your request, proceed to Step 3.

Step 3 — File a Charge with the New Jersey Division on Civil Rights (NJDCR). You have one year from the date of discrimination to file. You can file online at nj.gov/oag/dcr or by visiting an NJDCR office in person. You can also file by mail. The charge form requires: your name, contact information, employer's name and address, date of alleged discrimination, detailed description of what happened (including that the employer discriminated based on your arrest record), names of witnesses if any, and copies of supporting documents (rejection letter, arrest record, court documents, correspondence). Filing is free. Once filed, NJDCR will assign an investigator to your case. Provide your contact information and ensure you are reachable during business hours.

Step 4 — Investigation Process. NJDCR's investigator will contact the employer within 15-30 days and request information about the hiring decision. The investigator will ask the employer to explain the job requirements, the applicant pool, how candidates were selected, and why you were rejected. The employer must provide job posting, application records, and hiring documentation. You will be asked to provide a detailed statement and any additional evidence. The investigation typically takes 60-90 days but can extend to 180 days. You will be notified of the status periodically. If NJDCR finds probable cause that discrimination occurred, they will attempt to conciliate (negotiate a settlement) between you and the employer. If conciliation fails, NJDCR can file an administrative complaint and schedule a hearing before an administrative law judge.

Step 5 — When to Consult an Attorney. Contact an employment law attorney specializing in discrimination immediately if: (1) the employer is large and well-resourced (they will likely hire counsel), (2) you have significant damages (lost wages, emotional distress), (3) the employer is non-responsive to your complaint or retaliates, (4) the investigation is taking longer than 180 days, (5) you received a notice of probable cause but the employer refuses to settle, or (6) the case proceeds to an administrative hearing. An employment discrimination attorney in New Jersey typically works on contingency for arrest record discrimination cases and can represent you throughout the NJDCR process and in court if needed. The attorney can help quantify damages (back pay, emotional distress, punitive damages) and negotiate a settlement.