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On February 7, 2013, “The Opportunity to Compete Act” was introduced in the New Jersey Senate, seeking to dramatically curtail the ability of New Jersey employers to obtain or use a job applicant’s criminal history during the hiring process. The proposed bill would require employers to engage in a multi-step process before rejecting an applicant based on a criminal record. Unfortunately, the process proposed in the Act lacks clarity as currently drafted. Under the Act, most employers would be prohibited from inquiring about an applicant’s criminal history during the application process, either directly or via a background check, until after a conditional job offer is made. Once a conditional job offer is made, an employer would be permitted to inquire about the applicant’s criminal history only after providing a detailed notification form, obtaining written consent from the applicant, and then providing the applicant with a standardized Notice of Rights form. Employers would then be permitted to consider only those specific types of convictions or pending charges expressly identified within the Act, and would be precluded from considering non-pending arrests, or erased, expunged, pardoned, or juvenile convictions. Employers who violate the bill may be subject to civil penalties.

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