Do I Have to Disclose a Previous Arrest?

Everyone has a past, whether it is good or bad people say that their past follows them wherever they go. However, many people think that it is unfair if they have turned their lives around that they should have to be continually haunted by having an arrest on their criminal record. Many people in New Jersey find it hard to find decent employment when they have to disclose that they have been arrested. This blog post will explore what a person has to disclose when they are applying for a job.  

What Laws Govern How Employers Use Criminal Records During the Employment Application Process?

In New Jersey, there are several important laws that regulate how employers use criminal records during any application process. It is important to understand that these laws are complicated and intricate and require careful study to make sure that the particular laws are applicable to you.  Some of the laws that pertain to criminal records are:

  1. The Opportunity to Compete Act (OCA), a New Jersey state law also sometimes called “Ban the Box.”
  1. The Fair Credit Reporting Act (FCRA), a federal law.
  1. The New Jersey Fair Credit Reporting Act (NJFCRA), a New Jersey state law
  1. Title VII of the Civil Rights Act of 1964 (Title VII), a federal law.

These laws all set requirements on employers about what they can and cannot ask during the employment application process. Some of these laws such as The Fair Credit Reporting Act (FCRA), and Title VII of the Civil Rights Act of 1964 are federal laws, which means that even if you are applying for a job that is not in New Jersey, these laws still apply.

What are Employers Allowed to ask under the Opportunity to Compete Act?

The Opportunity to Compete Act, otherwise known as the Ban the Box Law signed by Governor Chris Christie took effect in March of 2015.  The law was designed and enacted because the New Jersey Legislature saw that by removing obstacles for people with criminal records that they could provide those with a criminal record an opportunity to advance economically and take advantage of social opportunities that would otherwise be denied to them because of their criminal history.  The legislature also noted that criminal background checks had been dramatically increasing over the years before this act was enacted and noted that nearly 90 percent of large employers in the United States conducted background checks as part of their hiring processes.  The legislature was concerned that if employers were allowed to exclude everyone with a criminal background that this would affect nearly 65 million adults in the United States. Additionally, many employment advertisements in New Jersey were frequently including language that discouraged people from applying if they had a criminal record.

The Opportunity to Compete Act law generally prohibits an employer from requiring that an applicant for employment complete any employment application during the initial application process that asks about an applicant’s criminal record. It also prohibits an employer from making any oral or written inquiry during the initial employment application process regarding an applicant’s criminal record.

young male being arrested by male cop

However, if an applicant chooses to disclose any information during their initial employment application pertaining to their criminal record, then the employer is entitled to ask questions about the person’s criminal record during the initial application process.

It is important to understand that under the OCA an employer is not absolutely denied from asking a job candidate about their criminal history. After the initial interview process, an employer is generally allowed to ask an applicant about their criminal record. Additionally, this act does not explicitly prevent an employer from making a hiring decision based on an applicant’s criminal record. An employer is still entitled to refuse to hire a person based on their criminal record. However, under this Act, an employer is not allowed to refuse to hire a person if their criminal record has been expunged or a relevant portion of their record has been expunged.

The New Jersey Legislature reasoned that if they could remove these initial hurdles that many applicants faced when they were applying for jobs that they could increase the likelihood that those with a criminal record would be able to attain employment. The legislature also noted that many employers would exclude any applicant who had a criminal record regardless of the charge or how old the charge was.

What Employers are Covered by the OCA?

There are many important exceptions to the OCA, and not every employer is precluded from asking an applicant if they have a criminal record during the initial interview.

To be covered, an employer is any person, company, corporation, firm, labor organization or association with at least 15 or more employees. For an employer to be covered under this act they need to employ 15 or more employees over 20 calendar weeks. Additionally, for an employer to be covered by this act they need to do business, employ people, and also take applications in New Jersey. Under the act, all job placement and referral agencies and other employment agencies, excluding the United States Government agencies, boards, or commissions or any employee are excluded.

However, as noted above if an applicant had their record expunged or part of their record expunged those employers who are covered under this act would not be permitted to ask about an applicant’s criminal record during an initial interview.

close up of silver handcuffs

Am I eligible for an Expungement?

The New Jersey Expungement law N.J.S.A. 2C:52-1 through N.J.S.A. 2C:52-32 carefully defines who is eligible to expunge a criminal record. An eligible person must prepare a Petition for Expungement and file it in the Superior Court in the county where the arrest or prosecution took place.  Generally, you may have your record expunged for a conviction was for an indictable offense (generally an offense punishable by six months of jail time or more), for a disorderly person offense (generally an offense punishable by less than six months of jail time), or for a violation of a municipal ordinance.

In New Jersey, an expungement is the removal and isolation of all records on file with any court detention or correctional facility, law enforcement, criminal justice agency or juvenile justice agency concerning a person’s apprehension, arrest, detention trial or disposition of an offense within the criminal or juvenile justice system. Unless otherwise provided by law, if an order for expungement is granted, the adult arrest, the record of law enforcement, the record of law enforcement taking you into custody as a juvenile, conviction, adjudication of delinquency, disposition, and any related proceedings are considered not to have occurred.  Expunged records include:

  • Complaints
  • Warrants
  • Arrests
  • Commitments
  • Processing records
  • Fingerprints
  • Photographs
  • Index cards
  • “Rap sheets” and
  • Judicial docket records.

Under the Opportunity to Compete Act, if you have had part of your record expunged, then an employer is not permitted to ask you about your criminal record during the initial application process. Additionally, an employer is not allowed to preclude a person who has applied for a position solely on the fact that they have a criminal history if it has been expunged. Therefore, an expungement offers those who qualify an opportunity to clear many of the hurdles that having a criminal record can pose.

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