Hunton Employment & Labor Perspectives

In September, the Newark Municipal Council passed Ordinance 12-1630, which prohibits any employer with five or more employees from asking job candidates before or during the application process about their criminal history (i.e., the ordinance “bans the box” from an employment application). 

Specifically, the ordinance provides that an employer, when making any decision regarding employment of an individual at a physical location, in whole or substantial part, within the City of Newark, shall not conduct any pre-application criminal history inquiry regarding any person; and that the employer may only make a criminal history inquiry regarding a candidate if the employer has made a good faith determination that the position is of such sensitivity that a criminal history inquiry is warranted.  Any such inquiry into and consideration of the criminal history of a candidate may take place only after the candidate has been found otherwise qualified and received a conditional offer of employment, and only after written notice is provided.

Written notification to the candidate or employee must: (1) advise the individual that upon written consent of the candidate or employee, the employer will be conducting a criminal history inquiry; (2) advise the individual that, following any adverse decision by the employer regarding employment, the candidate or employee will have the right and opportunity to present evidence during a review of the employment decision; and (3) attach a copy of the ordinance.  If, after conducting a criminal history inquiry, the employer makes an adverse employment decision, the type of evidence a candidate or employee may present during a review of the employment decision includes evidence related to the accuracy and/or relevance of the criminal history results – specifically, evidence relating to:  the nature of the crime and its relationship to the proposed job duties, the amount of time that has elapsed since the offense(s), the degree of rehabilitation and good conduct of the candidate or employee, whether the job provides an opportunity of the commission of similar offenses, and whether the circumstances leading to the offense(s) are likely to reoccur. 

Penalties for violations range from $500 to $1,000, depending on whether the violation is a Type 1 or Type 2 violation.  A Type 1 violation is an initial violation or a violation that is not preceded by another violation within the previous three years.  All actions within the application process for the same position together constitute a single Type 1 violation, notwithstanding that each would otherwise constitute a violation on its own.  A Type 2 violation is any violation that is preceded by another violation within the previous three years.  Each action that would constitute a Type 2 violation is a separate Type 2 violation for penalty purposes.

The Newark ordinance, which goes into effect this week, is part of a growing trend at the federal, state and local levels of government to limit employers in conducting criminal background checks on their applicants and employees. The ordinance, however, is different from many other cities’ ban the box ordinances in that it greatly expands coverage.  The Newark ordinance covers all private sector employers with five or more employees and doing business, employing persons, or taking employment applications within the City of Newark.  The ordinance also applies to the rental, lease or sublease of real property and licensing by the City.  As one of the most expansive ordinances yet, it appears that the only criminal history inquiries not covered by the new ordinance are those inquiries or disqualifications mandated by federal or state law. 

The Newark ordinance will certainly add momentum to the already quickly-growing ban the box movement that has been sweeping the Country over the last several years.  And if its expansive provisions are any indication of what’s to come, private employers should keep an eye open for similar ban the box ordinances in their cities in the near future.