A recent ordinance has been passed that will change the way most employers in Newark, New Jersey are allowed to use and conduct criminal background searches on applicants. Effective November 18^th 2012, the ordinance will have a significant impact on the process of hiring new employees for all employers of five or more people that do business in, employ in, or take applications from, the city of Newark.

For starters, employers can only consider looking into an applicant’s criminal past after determining that the applicant is qualified and a conditional offer of employment has been made. The result should be a decrease in the number of skilled applicants dismissed from the applicant pool early on in the hiring process simply due to a criminal record. Furthermore, after obtaining the applicant’s written consent for a background check, the employer can only use certain information. A summary of the restrictions are as follows:

1. Employer’s may look into –
   • Indictable offense convictions going back eight years including the termination of any incarceration.
   • Disorderly person’s convictions going back five years, including the termination of any incarceration.
   • Pending criminal charges, including cases that have been continued without findings.
2. Employer’s may not look into –
   • Any arrest or accusations against the individual that are not pending or did not result in a conviction.
   • Any records that have been erased, expunged, pardoned or nullified legally.
   • Juvenile adjudications of delinquency.
   • Records that have been sealed.
3. Exceptions include –
   • Convictions for murder, voluntary manslaughter, and sex offenses that resulted in state imprisonment. These convictions are not bound to the eight year restriction.

Should an employer conduct a background check on a potential applicant or employee covered by the ordinance, the following six factors that must be considered when evaluating the criminal history information:

1. The nature of the crime and its relationship to the duties of the position sought or held
2. Any information pertaining to the degree of rehabilitation and good conduct, including any information produced by the applicant or employee or produced on his or her behalf
3. Does the prospective job provide an opportunity for a repeat offense, or the commission of similar offenses from the applicant
4. Whether the circumstances leading up to the offense(s) are likely to reoccur
5. The amount of time that has elapsed since the offense(s)
6. Any certificate of rehabilitation issued by an state or federal agency
7. How does the nature of the crime relate to the responsibilities of the position

All factors are required to be documented on the new Applicant Criminal Record Consideration form and should explain the employer’s choice to revoke the conditional hire should that decision come to pass. Also, if the conditional hire is revoked after the background check – the applicant must be given a copy of the Applicant Criminal Record Consideration form.

Additionally, the applicant must be given a written notice of rejection and the opportunity for review – a ten day grace period in which the applicant can contact the employer to speak to the accuracy or job relevance of the results. The employer must then take the additional information into consideration, and provide the application with a written document of the addition information, how it weighed into the hiring decision, and the employer’s final decision.

Newark’s new rules are in fact not new, but are the suggestions of the EEOC to help fight against discrimination in the hiring process. Big companies like PepsiCo have recently had to pay large settlements for having hiring procedures that, based on the (inconsequential) criminal record data of applicants, have been adversely impacting certain protected groups such as minorities and specifically African Americans and Hispanics.

Certainly these are steps forward in the right direction to not only providing an even playing field for all job applicants in tough economic times, but also to help boost the economy and help get more Americans back to work.