Ban the Box Laws in New Jersey: Criminal History in Hiring

Federal law does not have a blanket ban on criminal history inquiries during the hiring process. However, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and has issued guidance that employers using blanket exclusions based on criminal convictions may violate Title VII if those policies have a disparate impact on protected classes without demonstrable job-related necessity.

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., regulates background checks performed by third parties and requires employers to disclose to applicants when a background check will be conducted and to provide a copy of the report and notice of adverse action before making an adverse employment decision based on that report.

Federal contractors must comply with Executive Order 11246 and Office of Federal Contract Compliance Programs (OFCCP) rules, which encourage but do not mandate ban the box practices. The federal baseline allows employers to inquire about criminal history at any stage of hiring unless state or local law prohibits it. Enforcement of federal fair hiring rules around criminal history is handled by the EEOC and the Federal Trade Commission (FTC) for FCRA compliance. Individual states and municipalities, however, have adopted much stricter ban the box laws that go beyond the federal floor.

New Jersey's ban the box law is one of the most employee-protective in the nation. Under N.J.S.A. 34:6B-5.1 and N.J.S.A. 34:6B-5.2, New Jersey prohibits both private employers with 15 or more employees and all public employers from inquiring about an applicant's criminal history on the initial written job application or during the initial job interview.

The law is significantly stronger than federal law because it imposes a categorical prohibition based on timing rather than merely regulating how criminal history information is used. Private employers must have at least 15 employees to be covered; employers with fewer than 15 employees are not subject to the ban the box requirement, though they remain subject to other anti-discrimination laws.

Under N.J.S.A. 34:6B-5.2, if an employer intends to deny employment based on a criminal conviction, the employer must conduct an individualized assessment. The applicant has the right to submit documentation regarding rehabilitation, employment history, and other mitigating factors. The employer must consider whether the conviction is directly related to the job duties, how long ago the offense occurred, and what evidence the applicant has presented about rehabilitation.

Key exemptions exist. Law enforcement agencies may inquire about criminal history at any stage of hiring. Employers hiring for positions caring for children, vulnerable adults, or the elderly are exempt from the ban the box timing requirement but must still comply with the individualized assessment rule if denying employment based on conviction. The remedies available under state law include damages, attorney fees, and civil penalties enforced by the New Jersey Division on Civil Rights.

New Jersey law carves out significant exceptions for specific job categories and employer types. Law enforcement agencies at all levels—federal, state, and local—are exempt from the timing restrictions of the ban the box law and may inquire about criminal history at any stage of the hiring process. This includes police departments, state troopers, corrections officers, and federal law enforcement agencies hiring in New Jersey.

Positions involving direct care, supervision, or unsupervised access to children, vulnerable adults, or the elderly are exempt from the timing prohibition. These include childcare workers, school employees, home health aides, nursing home staff, and adult day center staff. However, even for these exempt positions, the individualized assessment requirement still applies if the employer is denying employment based on a conviction.

The law does not apply to employers with fewer than 15 employees for private employers, though public employers of any size must comply. The prohibition applies only to inquiries about criminal history on written applications and during initial interviews; employers may still screen through background check companies, provided they follow the timing requirements and FCRA compliance rules.

The individualized assessment requirement has a key limitation: employers may still use the results of convictions directly related to job duties after proper assessment. Additionally, the law does not prohibit inquiries about criminal charges that did not result in conviction, though the EEOC guidance under Title VII suggests caution with this practice to avoid disparate impact discrimination.

Step 1: Document Everything. From the moment you receive a job application or attend an interview, document all communications from the employer. Keep copies of job postings, application forms, written communications, and emails. Write down dates and times of conversations, noting specifically whether the employer asked about criminal history and at what stage of the hiring process. Take screenshots of online applications that ask criminal history questions before the conditional offer stage. Save any background check results and notices you receive from third-party screening companies. This documentation becomes critical evidence if you need to file a complaint.

Step 2: Send Written Notice to Employer. If possible before declining the job or after, send a written letter to the employer's HR department (email is acceptable) documenting the specific violation. State clearly: 'You asked me about my criminal history on [date] during [job application/interview/other stage], which violates New Jersey law N.J.S.A. 34:6B-5.1. This inquiry occurred before a conditional job offer was made.' Request a written response. Keep copies of all correspondence. This creates a paper trail and may prompt the employer to cease the practice.

Step 3: File with New Jersey Division on Civil Rights. File a discrimination complaint with the New Jersey Division on Civil Rights (NJDCR) within 180 days of the violation, although it is better to file as soon as possible. Visit the NJDCR website at www.nj.gov/oag/dcr or call (973) 648-2700. You can file online through their complaint portal or by mail. The complaint should include your name and contact information, the employer's name and address, dates of the violation, a detailed description of what happened (the specific criminal history inquiry and when it occurred), the job title applied for, and any documentation you have (application, emails, witness information). You do not need an attorney to file, and there is no filing fee.

Step 4: NJDCR Investigation Process. After you file, the NJDCR will assign an investigator within 60 days. The investigator will contact you to discuss details and may request additional documentation. The investigator will then contact the employer and request all hiring records, job applications, communications with you, and any policies regarding criminal history inquiries. The investigation typically takes 90-120 days, though it can extend longer if the employer does not cooperate. You have the right to provide additional evidence or witness statements. The investigator may conduct interviews with hiring managers and other witnesses. At the end of the investigation, the NJDCR issues a determination letter explaining whether there is probable cause to believe a violation occurred.

Step 5: Consult an Attorney. Consider consulting an employment law attorney as soon as you discover the violation or immediately after filing with NJDCR. An attorney experienced in New Jersey employment law can advise whether you have a strong case, explain your legal options, and help you understand potential remedies (damages, back pay, attorney fees, and civil penalties). Many employment attorneys work on contingency for ban the box violations, meaning you pay only if you win. If the NJDCR issues a probable cause determination, you can pursue a case through the NJDCR's administrative process or file a private lawsuit in New Jersey Superior Court. An attorney will help you navigate settlement negotiations or trial preparation.