On August 11, 2014, New Jersey Governor Chris Christie signed into law the New Jersey Opportunity to Compete Act, Pub. L. 2014, ch. 32 (the “Opportunity to Compete Act,” the “NJOCPA,” or the “Act”), which takes effect on March 1, 2015.  The Opportunity to Compete Act prohibits employers in New Jersey from requiring applicants for employment, “during the initial employment application process,” to complete any employment application that inquires about an applicant’s criminal record.

Because statutes such as the Opportunity to Compete Act effectively require employers to remove, from their employment applications, any check box that asks whether the applicant has a criminal history, such statutes are often termed “ban-the-box” laws.

The NJOCPA further bars employers in New Jersey from making, “during the initial employment application process,” any oral or written inquiry about a prospective employee’s criminal record.

The Opportunity to Compete Act defines the “[i]nitial employment application process” as “the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or job vacancy or when an employer first makes any inquiry to an applicant for employment about a prospective employment position or job vacancy, and ending when the employer has conducted a first interview, whether in person or by any other means[,] of an applicant for employment.”

In other words, once an employer in New Jersey has conducted a first interview of a prospective employee, (i) the employer may require the prospective employee to complete an employment application that inquires about the prospective employee’s criminal history, and (ii) the employer may inquire, orally or in writing, about the prospective employee’s criminal history.

The New Jersey Department of Labor and Workforce Development is authorized to prosecute summary proceedings against employers which violate the Act.  An employer which is found to have violated the the NJOCPA must pay a civil penalty of not more than $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

The Opportunity to Compete Act does not create a private cause of action by a worker against an employer for violating the Act.

The NJOCPA applies to employers in the private sector in New Jersey which employ 15 or more individuals.  Further, the Act applies to State, county, and municipal governments and agencies in New Jersey which employ 15 or more individuals.  The new law does not apply to the U.S. government.

Among other exceptions, the NJOCPA permits a business in New Jersey, even before the employer has conducted a first interview of a job applicant, to make the applicant complete an employment application that asks about the applicant’s criminal record, and to ask, orally or in writing, about the applicant’s criminal record, if the employment sought or being considered is for a position:

  • in law enforcement, corrections, the court system, homeland security or emergency management;
  • where a criminal history background check is required by law;
  • which an arrest or conviction would or may legally prohibit the job applicant from holding; or
  • as to which the employer is legally restricted in its ability to engage in specified business activities based on the criminal records of its employees.

The Opportunity to Compete Act also bars employers in the Garden State from knowingly publishing, or causing to be published, any job advertisement that explicitly provides that the employer will not consider applicants who have been arrested or convicted of a crime, unless the advertisement solicits applicants for one of the above-described, exempt positions.

New Jersey is the sixth state to pass legislation that limits the ability of employers in the private sector to make job applicants disclose their criminal histories.  New Jersey joins Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island in this respect.

Despite the new statute, it remains lawful in New Jersey for an employer to terminate or to refuse to hire an individual because that individual has a criminal record.  The NJOCPA merely restricts the means by which an employer may obtain a job applicant’s criminal history.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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In New York, the elements of conversion are “(1) intent, (2) interference ‘to the exclusion of the owner’s rights,’ and (3) possession, or the right to possession in plaintiff.”   2 Leon C. Lazer, et al., New York Pattern Jury Instructions – Civil § 3.1 (2d ed. 2006) (quoting Employers’ Fire Ins. Co. v. Cotten, 245 N.Y. 102, 156 N.E. 629 (N.Y. 1927)); see Meese v. Miller, 79 A.D.2d 237, 436 N.Y.S.2d 496, 500 (4th Dep’t 1981).

Further, in New York, a negotiable instrument (such as certain drafts, bills of exchange, checks, certificates of deposit, and notes) is converted when (i) “a drawee to whom it is delivered for acceptance refuses to return it on demand,” (ii) “any person to whom it is delivered for payment refuses on demand either to pay or to return it,” or (iii) “it is paid on a forged indorsement.”  N.Y. U.C.C. § 3-419(1), 3-419(1)(a) – 3-419(1)(c); see N.Y. U.C.C. § 3-102(1)(e); id. § 3-104 (defining “negotiable instrument”).

If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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New York Enacts Law Enabling Some Chronically Ill Workers To Use Medical Marijuana On The Job

July 29, 2014

On July 7, 2014, New York Governor Andrew Cuomo signed into law the New York Compassionate Care Act, N.Y. State Senate Bill S07923, N.Y. State Assembly Bill A06357E (the “NYCCA” or the “Act”), which, effective immediately, legalizes and comprehensively regulates the manufacture, sale and use of medical marijuana in New York State. The New York […]

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What Are The Elements Of Breach Of Implied Contract Of Good Faith And Fair Dealing In New York?

July 11, 2014

In New York, within every contract is an implied covenant of good faith and fair dealing.  The covenant is breached when a party acts in a manner that deprives the other party of the right to receive benefits under their agreement.  The covenant encompasses any promises which a reasonable person in the position of the […]

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New York City Enacts Statute Authorizing Certain Unpaid Interns To Sue For Employment Discrimination Or Workplace Harassment

June 25, 2014

Effective June 14, 2014, certain unpaid interns in New York City gained the right to sue their employers for discrimination in employment or workplace harassment.  However, the effect of this new statute is quite limited, because most unpaid trainees in New York City fall outside the new statute’s definition of an ” ‘intern.’ ”  As […]

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What Are The Elements Of Breach Of Contract In New York?

May 14, 2014

In New York, “The elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant, (2) performance by plaintiff, (3) defendant’s failure to perform, [and] (4) resulting damage.”  2 Leon C. Lazer, et al., New York Pattern Jury Instructions – Civil § 4.1, at 594 (2d […]

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Newark, New Jersey Enacts Law Mandating Paid Sick Leave For Workers

April 25, 2014

On January 29, 2014, Newark Mayor Luis Quintana signed into law the Newark Sick Leave for Private Employees Ordinance, Ordinance 13-2010 (the “Newark Sick Leave Ordinance,” the “Sick Leave Ordinance,” the “Ordinance,” or the “NSLPEO”).  Effective May 29, 2014, the Sick Leave Ordinance requires employers in Newark, New Jersey which employ 10 or more employees […]

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May My Business In New York Secretly Make A Video Recording Of Its Employees In The Workplace?

April 1, 2014

Can a non-governmental employer in the State of New York lawfully make a video recording of its employees in the workplace without the employees’ knowledge?  The short answer is that a private employer in New York lawfully may engage in secret, video-only surveillance of its employees in certain areas of the workplace, unless the employer […]

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New York City Council Passes Bill Requiring Businesses With Five Or More Workers To Provide Paid Sick Leave

March 17, 2014

On February 26, 2014, the New York City Council, by a vote of 46 to 5, passed a bill, Int. No. 1-A-2014 (the “Bill”), amending the New York City Earned Sick Time Act to provide that effective April 1, 2014, among other revisions, employers in New York City which employ five to 14 employees must […]

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May My Business In New York Lawfully Fire An Employee Who Is Out On Short Term Disability?

March 4, 2014

As this author has previously explained, most workers in New York State are eligible for temporary cash benefits, known as short term disability benefits (“STD benefits”), when they are disabled by injury or sickness that is not work-related.  See N.Y. Workers’ Comp. Law § 201(9)(A)(defining ” ‘Disability’ “).  In particular, most employees in New York […]

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