Significant Limitations Placed on Newark Employers Considering Criminal Records when Hiring

Following updated federal guidance from the EEOC last April concerning limits on employers’ use of arrest and conviction records when making employment decisions, Newark has taken matters into its own hands passing a new ordinance which restricts Newark employers’ ability to consider criminal records when making hiring decisions. Beginning November 18, 2012, Newark employers with five or more employees will be limited in their ability to conduct criminal background checks on applicants.  Going forward, covered employers may not make any criminal background inquiries, whether orally or in writing, prior to extending a conditional offer of employment.  If a conditional offer is extended, employers may make narrow criminal background inquiries, and only if there has been a “good faith determination” that criminal history is relevant based on the sensitivity of the position, the employer has provided the candidate with advance written notice of the background check, and the candidate has agreed to the check in writing.  Even if these preconditions are met, Newark employers may only inquire into certain criminal history, including:

• indictable offense convictions for eight years following sentencing;
• disorderly persons convictions or municipal ordinance violations for five years following sentencing;
• pending criminal charges, including cases that have been continued without a finding until the case is dismissed;
• convictions for murder, voluntary manslaughter, and sex offenses requiring registry punishable by a term of incarceration in state prison, regardless of the length of time that has passed since disposition.

The ordinance also requires employers to consider certain factors when evaluating the results of a permissible criminal background check, including the nature of the crime and its relationship to the duties of the position sought, any information pertaining to rehabilitation, the amount of time that has elapsed since the offense, and whether the prospective position provides an opportunity for the commission of a similar offense.  In the event the candidate is not ultimately hired, the ordinance also requires covered employers to provide the applicant with a form stating the reason for rejection and to give the applicant an opportunity to respond. The Municipal Council has made it clear to Newark employers that any decision not to hire an applicant with a criminal background must be narrowly tailored to the job in question.  Newark employers should review current hiring practices, particularly with respect to criminal background checks, and work with counsel to confirm these processes comply with the new ordinance. If you have any questions or for further information about implementing lawful pre-hire processes, please contact James J. McGovern, III Esq., jmcgovern@genovaburns.com or Douglas J. Klein, Esq., dklein@genovaburns.com, in the Labor Law Practice Group.