Building a team is one of the most important steps in creating a successful business. Taking on employees, however, creates an employer-employee relationship that could fall under the jurisdiction of local, state, and federal employment laws. One issue in employment law that has received considerable attention in recent years is the use of criminal history in hiring decisions. Employers may be hesitant to bring on a new hire with a criminal record for a variety of reasons. Laws in many jurisdictions, however, restrict employers’ ability to use criminal history as a factor. New York City has one of the most restrictive laws in the country on this issue, and many jurisdictions are following its lead. New Jersey business owners may find their state’s law less restrictive, but it applies statewide.
Laws limiting businesses’ consideration of criminal history in employment decisions are often known as “Ban the Box” (BTB) laws. They prohibit employers from asking about criminal history during the initial stages of the job application process. The “box” that these laws ban is the checkbox on a typical job application form asking whether an applicant has ever been convicted of a felony or another offense. Checking that box, for some employers, could mean automatic rejection of the application. From job applicants’ point of view, this makes it difficult for certain individuals to find a job, regardless of whether their particular criminal history would have any impact on a particular job. If people with a criminal history cannot find a job, they might be more likely to commit more crimes. See, e.g. N.J. Rev. Stat. § 34:6B-12. Employers need to know their potential liability in this area.
The New York City Human Rights Law (NYCHRL) generally prohibits discrimination on the basis of criminal convictions or arrest records. N.Y.C. Admin. Code §§ 8-107(10), (11). It also prohibits employers from discriminating in job advertisements, such as by stating that a job is only open to people without criminal records. Id. at § 8-107(11-a)(a)(1). Employers cannot inquire about a job applicant’s criminal history until they have made a “conditional offer of employment” to that individual. Id. at § 8-107(11-a)(a)(3).