The City of Newark, New Jersey recently passed an ordinance that will
significantly impact employers’ and other entities’ ability to conduct
criminal background checks or even ask about a candidate’s criminal
background. The ordinance limits both when and the extent to which
employers may ask about or use criminal history in employment. Newark’s
ordinance12-1630, entitled “Ordinance To Assist The Successful
Reintegration Of Formerly Incarcerated People Into The Community By
Removing Barriers To Gainful Employment And Stable Housing After Their
Release From Prison; And To Enhance The Health And Security Of The
Community By Assisting People With Criminal Convictions On Reintegration
Into The Community And Providing For Their Families,” goes into effect
on November 18, 2012.
Newark’s ordinance is the latest example of
a series of efforts at the federal, state and local level aimed at
curtailing employers’ ability to use criminal history information in
employment. At the federal level, employers should be aware of the Equal
Employment Opportunity Commission’s (EEOC) April 25, 2012 Guidance on
the Use of Arrest and Convictions (the Guidance) which sets forth
practices employers may want to consider so as not to be a target of the
EEOC. Similarly, a number of states have pending legislation seeking to
follow the EEOC’s lead. This, in addition to other states which have
already regulated this area.
Who is Covered Under Newark’s Ordinance
Newark’s
ordinance is only applicable when the “the physical location of the
prospective employment [is] in whole or substantial part, within the
City of Newark.” In that sense, it is of limited local application.
Importantly, the term “employer” is defined as “any person, company,
corporation, firm, labor organization, or association, which has five
(5) or more employees and does business, employs persons, or takes applications for employment within the city of Newark…”
“Employment”
is defined more broadly, however, as “any occupation, vocation, job,
work or employment with or without pay, including temporary or seasonal
work, contracted work, contingent work, and work through the services of
a temporary or other employment agency, or any form of vocational or
educational training with or without pay.” (emphasis added).
These
definitions suggest that the prohibitions contained in the ordinance, as
well as the affirmative obligations it imposes, may apply with equal
force when an employer is seeking volunteers, students, or independent
contractors as opposed to solely employees.
As always, we suggest
you consult with your own counsel regarding this matter, however feel
free to contact us for further information.
