CWS 3.0: November 14, 2012

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New Ordinance Restricts Criminal Records Checks

A new ordinance goes into effect next week in Newark, N.J., that will broadly restrict certain employers’ use of criminal records for employment purposes, according to the October 2012 issue of the Legs & Regs Advisor. Under the ordinance, it will be illegal for a covered employer to make “any pre-application criminal history inquiry,” which it defines as “any inquiry that precedes the application process, including, but not limited to, in connection with any decision regarding employment, any recruitment of candidates, attempts to identify candidates, or solicitation of candidates.” It also makes it illegal for covered employers to “make any inquiry regarding a candidate’s criminal history during the application process.”

The ordinance defines “inquiry” as “any direct or indirect conduct intended to gather information from or about [an] applicant, candidate or employee, using any mode of communication, including but not limited to application forms, interviews, and criminal history checks.” Companies face fines of up to $1,000 for each violation.

Similar statutes have been enacted in Indiana, Massachusetts and Ohio. It is possible plaintiffs’ lawyers will attempt to bring public policy actions claiming that individuals whose rights have been violated under the ordinance have a right to sue directly in court.

Contingent workforce managers that source talent in Newark and areas with similar statues should monitor developments in this and related areas of the law, including laws restricting the use of credit history information. They should assess whether they are covered by the ordinance. If they are, they should evaluate their job advertisements, job applications, adverse action notices, and guidelines and documentation for the hiring process to ensure compliance with the ordinance.

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