Changes in Pre-Employment Inquires into Applicants’ Criminal History

Last month, Senators Sandra Cunningham, M. Teresa Ruiz, and Raymond Lesniak introduced a bill that would limit a company’s rights to ask certain questions of job applicants that pertain to the applicant’s criminal record. Entitled the “New Jersey’s Opportunity to Compete Act,” the bill would, among other things, ban a potential employer from including a checkbox on an application that asks whether the applicant has a criminal history. In fact, the bill would prevent employers from asking an information about criminal history until after a conditional offer is made. The bill would allow business owners to do a background check, but much later in the hiring process than is currently common, especially among smaller employers.

While it is understandable that many New Jerseyans with criminal histories would applaud this effort to help employ people with convictions on their record, it must also be acknowledged that a business owner, who is often liable for the actions of his or her employees under the doctrine of vicarious liability, should be allowed to use criminal history as a selection criterion. Allowing businesses to do a post-hoc criminal background check does remedy the situation to some degree, but only when other qualified applicants will have already been turned away. This bill may be especially detrimental to small business owners, who may only have a few employees. One employee with a serious criminal conviction can have a major impact on a such a business, and small businesses may not have the resources to do a post-offer background check, when a simple checkbox would have resolved the issue prior to an offer. I encourage you to read the bill below and welcome your thoughts on this issue.

This entry was posted in Criminal Defense Law, Small Business Law and tagged conviction, criminal background, employment, new jersey, small business on by Robert Colby.

About Robert Colby

Robert Colby is the Managing Attorney of Colby & Associates. His work focuses on small business matters, including commercial litigation, formation, transactional work, dissolution, and labor/employment law. He can be reached at [email protected]