Senate panel debates bill to limit employers’ ability to ask applicants about criminal history

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A bill before a state Senate panel today could create new job prospects for people with criminal convictions, but business groups fear it also could create unnecessary red tape and the potential for legal liability.The bill in question, known as the Opportunity to Compete Act, was the subject of testimony before a filled-to-capacity meeting of the Senate Labor Committee. The bill aims to give job applicants with criminal histories a better shot at gaining employment by making it illegal for employers to ask about criminal history until an offer of conditional employment has been extended.
“A bad left turn in anyone’s life doesn’t necessarily mean that a human being doesn’t have the skills and abilities to be a productive member of society,” said Al Koeppe, CEO of the Newark Alliance. “I’ve seen that to be the case in my life and careers.”
Koeppe, a former executive at Bell Telephone and Public Service Electric & Gas, said many workers don’t get the chance at redemption because they’re screened out by job applications that ask if they have ever been convicted of a crime. He said that also deprives the economy of valuable workers.
The issue is important because according to the National Employment Law Project, one in four adults has a criminal conviction, though most are nonviolent and don’t result in prison time.
Stefanie Riehl, assistant vice president at the New Jersey Business and Industry Association, said she agrees that people ought to be given second chances, and she agrees that the best practice is for employers not to ask about criminal convictions on job applications. But she said the proposed bill goes too far, creating a burden for employers.
The bill, she said, is “a lot more prescriptive than existing federal law and federal guidelines that exist, and it goes beyond measures in other states.”
For instance, the bill not only limits when an employer can do a background check, it also limits what types of offenses the employer can consider. Less-serious crimes can be considered only for five or 10 years following the applicant’s release from prison. The time frame depends on the type of crime.
If, after extending a job offer, an employer conducts a background check and no longer wants to hire the worker, the employer would have to send the applicant a certified letter explaining their decision, along with a copy of the criminal background check, and a copy of a state criminal record consideration form.
“Requiring employers to produce and provide candidates with documentation stating the rationale for rescinding a conditional offer inadvertently creates an unwarranted obligation,” said Michael Egenton, senior vice president at the New Jersey State Chamber of Commerce.
The bill was amended to apply only to companies with 15 employees, a threshold in line with federal Equal Employment Opportunity Commission standards. A previous version set the threshold at five employees. That change alone exempts some 80 percent of employers in the state, proponents said.
The bill also has been modified at the request of the New Jersey Lawsuit Reform Alliance to eliminate some types of liability potentially created under the bill. But Marcus Rayner, the alliance’s executive director, said there’s still a potential new liability as it relates to “disparate impact” claims, which allege a background check policy disproportionately disadvantages a particular protected class, such as racial minorities.
BMW, which has its North American headquarters in Englewood Cliffs, is currently facing a disparate impact lawsuit by the EEOC.
Rayner said any lawsuit — even frivolous one — can cost an employer thousands or millions of dollars in legal fees, even if the company prevails in court.
“Our point is if the goal is to get criminals back in the workforce, give employers complete ironclad legal protection,” he said. “Make it a partnership, where the government is helping employers do this without exposing them to litigation.”
The bill didn’t receive a vote Thursday. Committee Chairman Sen. Fred Madden (D-Turnersville) said he wanted to wait for clarification on matters such as how the law might be applied to applicants for police jobs, if at all.
In the meantime, proponents of the measure say persons with convictions will continue to face an unfair bias, no matter how much they’ve turned their lives around.
Tracey Syphax was convicted of a nonviolent offense early in life, but was given a job after prison, rose through the ranks and eventually started two multimillion-dollar companies of his own.
“But none of that would matter if I were to enter the job market tomorrow,” he told the committee. “What would matter is that I’ve been convicted of a crime.”