OPPORTUNITY TO COMPETE ACT

Transcription

1 OPPORTUNITY TO COMPETE ACT Encouraging fair employment application practices for people with criminal histories What Is the Opportunity to Compete Act? The Opportunity to Compete Act (S1484/A1999) is about procedural practices. Under the act, criminal background checks are delayed until later in the hiring process, encouraging employers to first focus on the current skills and qualifications of a candidate, rather than on past mistakes. This bill does NOT prevent employers from conducting background checks. This bill does NOT force an employer to hire anyone with a criminal record, nor does it force an employer to hire an unqualified applicant. This bill does NOT override any existing laws placing restrictions on eligibility for particular positions. This bill simply asks employers to consider an individual s full application, providing a realistic opportunity for a person who has changed his or her life. Key Elements of the Opportunity to Compete Act Timing of Criminal History Inquiry: Criminal history inquiries may still be done, but are deferred until after a candidate receives a conditional offer of employment. At that point, the employer can run a background check and ask any questions about the criminal history. The employer will continue to have complete and total access to the candidate s criminal history, and may withdraw an offer based on the criminal history. Size of Employers: This legislation applies to employers with 15 or more employees. Exemptions: This law DOES NOT APPLY: o (1) to law enforcement personnel o (2) to non-profit youth-serving organizations o (3) where any existing law disqualifies an applicant from a position based on his or her criminal history or restricts an employer s ability to engage in certain business activities based on the criminal records of its employees. Limitations on Liability: Candidates cannot sue an employer under this bill. Additionally, the bill gives employers the strongest protection against negligent hiring suits in the nation. Evaluation of Criminal History Information: In reasonably evaluating a candidate with a criminal history, an employer should also consider: the candidate s rehabilitation or good conduct; any information about inaccuracies in the record; the amount of time that has elapsed since the conviction or release from custody; the nature of and circumstances surrounding the crime; and the duties and settings of the job. Procedural Requirements: Candidates must receive notice of the withdrawal of a conditional offer and have ten days to respond with any additional information or evidence. An employer may, but is not required to, hold the position open during these ten days. New Jersey Institute for Social Justice 60 Park Place, Suite 511 Newark, NJ

2 OPPORTUNITY TO COMPETE ACT Encouraging fair employment application practices for people with criminal histories Benefits of the Opportunity to Compete Act Enlarged Talent Pools: Employers are assured that they are not missing the opportunity to compete for talented, desirably, productive employees. Reduced Employment Screening Costs: Delaying the point at which criminal history inquires occur would substantially reduce the number of background checks conducted and the associated expense. Economic Growth: The productive capacity of these individuals is tremendously underutilized. Reducing the high unemployment rate of those with criminal histories would spur economic growth in the communities in which they live and work. Jurisdictions with Ban the Box Laws Ban the Box laws have been in effect since 1998, and have been adopted by 10 States, the District of Columbia, and 58 Cities and Counties throughout the United States. States: California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico, Rhode Island (and the District of Columbia) Counties: Alameda, Santa Clara (CA); Muskegon, Saginaw (MI); Cumberland, Durham (NC); Multnomah (OR); Travis (TX) Cities: Berkeley, Compton, Carson, East Palo Alto, Oakland, Richmond, San Francisco (CA); Bridgeport, Hartford, New Haven, Norwich (CT); Wilmington (DE); Jacksonville, Tampa (FL); Atlanta (GA); Chicago (IL); Indianapolis (IN); New Orleans (LA); Baltimore (MD); Boston, Cambridge, Worcester (MA); Detroit, Kalamazoo (MI); Minneapolis, St. Paul (MN); Kansas City (MO); Atlantic City, Newark (NJ); Buffalo, New York (NY); Carboro, Charlotte, Durham, Spring Lake (NC); Canton, Cincinnati, Cleveland, Massillon (OH); Philadelphia, Pittsburgh (PA); Providence (RI); Memphis (TN); Austin (TX); Newport News, Norfolk, Petersburg, Portsmouth, Richmond (VA); Seattle (WA) Shaded states contain one or more Ban the Box jurisdictions. New Jersey Institute for Social Justice 60 Park Place, Suite 511 Newark, NJ

3 THE NEW JERSEY OPPORTUNITY TO COMPETE ACT: MYTHS AND REALITIES Background The New Jersey Opportunity to Compete Act ( OCA ) was crafted, at the direction of its principal sponsors, pursuant to an enormously business-sensitive process. More than a dozen lengthy meetings were held with business leaders and business associations throughout the state. We thank the business community for its good faith engagement in this process. The bill was modified substantially in response to business s concerns before even being introduced. Some of these modifications were: Raising the number of employees at which the law applies from 5 to 15, though other ban the box laws apply to businesses with even one employee; Eliminating the possibility of liability by: o Expressly precluding any job applicant s ability to file a lawsuit, and o Raising the negligent hiring standard to gross negligence an enormously high standard that does not apply in any of the dozens of places nationwide with ban the box laws; and Eliminating any obligation that businesses explain, even briefly, why a criminal record rendered an applicant inappropriate for a job. Myth: The bill applies to all employers and all jobs. Reality: The OCA does not apply to hundreds of thousands of jobs (including particularly lawenforcement jobs) and the vast majority of employers. First, approximately 700,000 New Jersey jobs are not covered by the OCA because they are at places with fewer than 15 employees. 1 Second, between 80-90% of New Jersey employers are exempt from the OCA because they have fewer than 15 employees. 2 Myth: The OCA undermines existing federal or state law. Reality: No one ineligible for a job because of a criminal history becomes eligible under the OCA. First, the bill does not apply when any federal or state law, rule or regulation (including any that may be adopted in the future) requires or even merely permits the consideration of a candidate s criminal history

4 when making an employment decision regarding a particular job. There are more than 580 such laws today. There are over 420 provisions in federal law that mandate the consideration of a criminal history or hold that certain criminal backgrounds may disqualify a candidate for a job or license. 3 Existing federal law would exclude from coverage federal law enforcement officers 4 and security guards with the Dept. of Homeland Security 5, since criminal histories could make someone ineligible to be employed in any of these positions. In addition, there are at least another 160 New Jersey state laws and regulations regarding jobs or licenses that require the consideration of a candidate s criminal history. 6 Law enforcement and related jobs almost universally require some kind of check into the candidate s criminal history. Any person applying to become a law enforcement officer, corrections officer, or even a fire fighter may be questioned about any criminal conviction, pending charge, or arrest in their history. 7 All of these positions are therefore outside the scope of OCA. The OCA does nothing to change what information is available about a candidate, or when, for any of these positions or any other position to which such a law applies. Second, nothing in the bill precludes an employer from making an appropriate license or credential a condition of employment. For example, if a job requires a commercial driver s license or TWIC ( Transportation Worker Identity Card, applicable to the Port Authority in the post-9/11 era), the employer of course may require that applicants have one. If they don t for any reason, including a criminal record they may be excluded from consideration. Though most licensing is pursuant to state law, under federal law alone there are nearly 160 statutes and regulations by which a candidate could have a license denied, suspended, revoked or limited based on a criminal record. 8 In sum, the OCA expands fairness, not eligibility. Myth: The bill requires an employer to hire persons with criminal records. Reality: The OCA does not require the employer to hire anyone, including anyone with criminal records. The bill, consistent with longstanding federal law, merely requires that employers consider a candidate s rehabilitation, good conduct, the time that has passed, the nature and circumstances surrounding any conviction, and any evidence that may show the criminal record to be inaccurate, along with the particular duties and setting of the job, when evaluating a candidate. At the end of the day, all that is required is individual consideration and reasonableness, with an appropriately high degree of deference to employers business judgment, because they know their businesses best. Myth: The bill exposes employers to new or expanded legal liability. Reality: The bill does not expand business liability. There is no private right of action under the law. This means no job applicant may file a lawsuit if they think the law has been violated in connection with their application process. The standard for negligent hiring a very narrow doctrine to begin with is raised in the bill from negligence to gross negligence, rendering the possibility of liability, as a practical matter, nonexistent. As noted above, none of the approximately 50 other ban the box laws in the country takes this step. As regards the Law Against Discrimination ( LAD ): there has never been a case in which a New Jersey employer has been found liable under this law based on the employer s use of criminal records. The

5 reasoning by which the OCA could somehow affect the LAD deemed between attenuated and fanciful by Douglas Eakeley, Esq., of the Lowenstein Sandler firm is built on a foundation of air. Myth: The bill requires unsafe persons to be given access to private homes. Reality: The bill explicitly permits employers, in comparing a candidate s background to the realities of a job, to consider both the duties and the setting of the job, and to make their own reasonable judgment. If a candidate has committed recent burglaries, of course the candidate may be rejected for a position involving entry to customers or clients homes. The OCA makes explicit this absolute right that every employer already enjoys. Myth: The bill would cause delay in the hiring process. Reality: The OCA causes no delay. If a candidate is, pursuant to an employer s business judgment, deemed not appropriate to fill a position, the candidate may be rejected and the next candidate offered the position immediately. Myth: The bill will force employers to change their current hiring processes. Reality: Nothing in the bill forces employers to change their current hiring practices. Under the OCA, an employer may extend a conditional offer at any point in the hiring process, be it upon receipt of an application, after a first interview, or after a long series of interviews. Nothing in the OCA would require employers to modify their hiring processes. Myth: The bill overreaches and under-appreciates the realities of business. Reality: The legislation was drafted, strengthened and continues to be enhanced by the practical advice of New Jersey s leading business associations. The business community was consulted over the course of eight months. The core principles and key elements of the legislation are based on not only what the Equal Employment Opportunity Commission calls a best practice but on the practices many businesses use already. According to the Society of Human Resource Management (SHRM), the world s largest association devoted to human resource management, over 60% (a strong majority) of businesses in a recent survey waited until after a conditional offer had been extended to initiate a criminal background check, 32% did so after an interview, and only 4% ran background checks after the application but before the interview. 9 According to the SHRM, businesses postpone the background inquiry until later in the process to save both time and money. The OCA is grounded in the practical experiences of the federal government as the nation s largest public employer, Wal-Mart as the nation s largest private employer, and the current practice of many businesses. Finally, OCA is rooted in research of the 10 states and 58 county and local jurisdictions that have had such laws 1 See United States Bureau of Labor Statistics, Private industry by supersector and size of establishment: Establishments and employment, first quarter 2011 (most recent available data), by State (New Jersey), (as these data list employers with up to 10 and up to 20 employees, but not up to 15, half the number between 11 and 20 is included in the 700,000 estimate). 2 This is the portion of private establishments in New Jersey with fewer than 10 employees, because the Bureau of Labor Statistics does not keep statistics the number of establishments with fewer than 15 employees, so significantly understates the scope of the exclusion. See United States Bureau of Labor Statistics, 2011, 3 See National Inventory of Collateral Consequences of Conviction, (last accessed June 14, 2013)(after accepting the terms of use, click federal, then Employment under Search by Consequence Category ).

6 4 5 U.S.C.A This exemption includes law enforcement officers in Native American territory, 25 C.F.R , and at the Bureau of Reclamation, 10 C.F.R. PART 73 App x B(I)(A)(b) & B(VI)(B)(1)(A)(3-4) C.F.R This exemption also includes security guards at Ronald Reagan National Airport, 49 C.F.R (c)(1), and nuclear power plants, 43 C.F.R (b), (a), , and (f). 6 A list of these New Jersey laws is available from the New Jersey Institute for Social Justice. 7 N.J.S.A. 11A:4-10. New Jersey also requires background checks for any employee of the State Police, not just officers. See N.J.S.A. 53: State law requires background checks for corrections officers, N.J.S.A. 30:4-3.11, and police officers of the New Jersey Department of Human Services. N.J.S.A. 30: Even animal control officers would be exempt, as there is state law concerning their criminal histories. See N.J.S.A. 4: b. 8 See note 1. Instead of entering Employment, click Occupational and professional license. 9 Society for Human Resource Management, Background Checking The Use of Criminal Background Checks in Hiring Decisions: Survey Findings, available at