Pillsbury Winthrop Shaw Pittman

‘Ban the box’ legislation expands across the country

By Kenneth W Taber, Paula M Weber, Rebecca Carr Rizzo and Stephen S Asay

There is a growing national movement to ‘Ban the Box’ — i.e. to prohibit questions about a job applicant’s criminal history on employment applications. Currently, ‘Ban the Box’ laws are primarily targeted at public employers; however, there are increasing efforts to impose these same restrictions on private employers. New Jersey, Washington, DC, and San Francisco have become the latest jurisdictions to pass such legislation. Laws prohibiting private employers from seeking certain information regarding criminal convictions are already in place in Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island, as well as various cities and municipalities, including Baltimore, Philadelphia, and Seattle. Employers would be well-advised to review and update their employment applications and policies based on these increasingly common restrictions.

On 11 August 2014, governor Christie signed the New Jersey Opportunity to Compete Act, which will take effect on March 1, 2015. The New Jersey law will apply to any employer that has 15 or more employees over 20 calendar weeks and that does business, employs persons, or takes applications for employment within New Jersey.

During the initial employment application process, which ends when an employer has conducted a first interview, covered employers are prohibited from making any inquiry, whether written or oral, regarding an applicant’s criminal record. If an applicant voluntarily discloses information regarding his or her criminal record, however, the employer may make inquiries regarding that record. Employers are also prohibited from publishing any advertisement stating that the employer will not consider applicants who have been arrested or convicted of crimes or offences…

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