Navigating Background Checks in New Jersey
If you’re an employer in New Jersey, performing background checks on potential hires is a critical step. A thorough check can verify a candidate’s information and reveal vital details about their past, including criminal history, driving record, education, and work experience. Pre-employment screening offers valuable insights that help you make informed hiring decisions.
However, conducting background checks isn’t as simple as running a quick search. Employers must carefully navigate the complex web of federal, state, and local fair hiring laws that govern how these checks are conducted and how the information obtained can be used. Compliance with these laws is essential to creating a safe work environment, reducing bias in the hiring process, and minimizing legal risks.
This guide offers a comprehensive overview of how to handle background checks in NJ. We’ll break down the key laws you need to know, outline the proper procedures to follow, and share best practices for ensuring a fair and compliant hiring process. Whether you’re a seasoned HR professional or a small business owner, this resource will provide the information you need to confidently and legally conduct background checks in New Jersey.
What Shows Up on a New Jersey Background Check
A New Jersey background check can reveal a lot about you. Here are some of the things that might show up.
Criminal History
A background check will likely reveal your arrest and conviction records, as well as any pending criminal cases you’re involved in. That includes felonies, misdemeanors, and even traffic violations.
However, the Fair Credit Reporting Act (FCRA) limits the reporting of some information that’s more than seven years old if the job you’re applying for pays less than $75,000 a year.
Also, New Jersey has a “Clean Slate Law” and expungement rules that may help to remove certain criminal records from public view.
Employment Verification
Employers can verify your previous employers, job titles, dates of employment, and responsibilities. They may even find out why you left your prior positions.
Education Verification
Background checks can also verify the degrees you’ve earned, the dates you attended school, and the institutions you attended. They can also verify professional certifications and licenses.
Motor Vehicle Records (MVR)
Your driving history will come up in a background check, including traffic violations, accidents, license suspensions, and DUI convictions. This is especially important for jobs that require driving, such as school bus drivers and commercial drivers.
Key New Jersey and Federal Laws Governing Background Checks
Both federal and state laws dictate how employers can conduct background checks. Here are some of the most important laws to know.
Federal Laws
- Fair Credit Reporting Act (FCRA): This federal law governs how consumer reporting agencies (CRAs) collect and share background check information. Under FCRA, employers have to disclose that they’re conducting a background check and get written consent from the applicant before doing so. The law also spells out the steps employers have to take if a background check leads to a decision not to hire someone.
- Fair Chance to Compete for Jobs Act (FCA): Also known as the federal “Ban the Box” law, this act limits when federal employers can ask about an applicant’s criminal history. It applies to federal agencies and contractors.
- Title VII of the Civil Rights Act of 1964: This landmark law prohibits discrimination based on race, color, religion, sex, or national origin. Employers have to be careful that their background check practices don’t have a “disparate impact,” meaning that they disproportionately exclude people in a protected group.
State Laws
- New Jersey Opportunity to Compete Law (Ban the Box): This law, similar to the federal FCA, limits when employers can ask about criminal history during the initial application process. The New Jersey law applies to employers with 15 or more employees and is designed to give people with criminal records a fair shot at getting a job.
- New Jersey Clean Slate Law: This law allows people to have certain criminal records expunged after a waiting period. Not all convictions are eligible, but the law is meant to encourage rehabilitation and lower the barriers to employment for people who have turned their lives around.
- Salary History Inquiry Prohibition: In New Jersey, employers can’t ask about an applicant’s salary history during the hiring process. This is meant to address pay inequity, especially for women and minorities.
- Social Media Information Inquiry Prohibited: New Jersey employers can’t ask for access to your social media accounts. This protects your privacy and prevents employers from discriminating against you based on your online activity.
Conducting Compliant Background Checks in New Jersey: Best Practices
Running background checks on potential employees can be a smart way to protect your business. However, it’s essential to do it right. Here’s a breakdown of best practices to keep you compliant with New Jersey and federal laws.
Developing a Background Check Policy
Having a written background check policy is more than just a good idea; it’s a necessity. A well-defined policy ensures that your background check process is consistent and fair, helping you avoid potential discrimination lawsuits and stay on the right side of the law.
Your policy should clearly outline:
- The types of background checks you conduct (e.g., criminal history, credit checks, etc.)
- Your procedures for obtaining disclosure and consent
- The steps you’ll take if you decide to take adverse action based on the background check results
- How you’ll conduct an individualized assessment of any criminal records
Obtaining Consent and Providing Disclosure
Before you run a background check on an applicant, you absolutely must get their written consent. The disclosure you provide must be clear, conspicuous, and written in a way that the applicant understands the nature and scope of the background check.
Your disclosure should also include information about:
- The Fair Credit Reporting Act (FCRA)
- Any applicable state laws
- The applicant’s rights under those laws
Individualized Assessment of Criminal Records
New Jersey employers can’t automatically disqualify someone based solely on their criminal history. You have to perform an individualized assessment to determine if the conviction is actually relevant to the job.
When conducting this assessment, consider factors like:
- The nature and severity of the offense
- How long ago the offense occurred
- The specific duties of the job
- Evidence of the applicant’s rehabilitation
Adverse Action Procedures
If a background check turns up something that makes you decide not to hire an applicant, you need to follow specific adverse action procedures.
First, you must provide the applicant with a pre-adverse action notice, which includes a copy of the background check report and gives them an opportunity to respond and explain any discrepancies or mitigating factors.
If, after considering their response, you still decide not to hire them, you must send an adverse action notice informing them of your final decision and their right to dispute the accuracy of the report with the background check company.
Navigating Specific Challenges in New Jersey Background Checks
Background checks in New Jersey can be tricky because of the state’s specific laws and regulations. Here are some of the areas where employers need to be extra careful.
Marijuana Policies and Drug Testing
Now that cannabis is legal in New Jersey, employers need to rethink their drug testing policies. With a few exceptions for safety-sensitive positions, you can’t require pre-employment cannabis tests.
To develop drug testing policies that comply with the law, it’s a good idea to talk with an attorney. Be sure to clearly state which jobs require drug testing and what happens if someone tests positive.
Pay Transparency Laws
New Jersey’s pay transparency law (NJ SB 2310) requires employers with at least 10 employees who work at least 20 weeks in a calendar year to include salary ranges in their job postings. This law affects how you hire and how you decide on compensation.
To comply with the law, review your job postings and make sure they include the required salary range information. Also, train your hiring managers on what the law requires.
Social Media Policies
New Jersey law puts restrictions on what kind of social media information you can ask for. Employers can’t require or even ask for access to an applicant’s social media accounts. This law protects the applicant’s privacy and prevents discrimination based on their online activity.
When screening social media, avoid asking for passwords or access to private accounts. Instead, focus on publicly available information that’s related to the job and consistent with legal requirements.
Should you use a background check provider?
If you’re an employer, you may be wondering whether you should conduct background checks yourself or hire a consumer reporting agency (CRA) to do them for you. Here are some things to consider.
Advantages of using a CRA
- Expertise and compliance. CRAs know the ins and outs of background check laws and procedures. That means they can help you stay compliant with all the regulations. They can also tailor their services to the specific jobs you’re trying to fill.
- Efficiency and cost-effectiveness. CRAs can make the whole background check process faster and easier, saving you time and money. In fact, hiring a CRA may cost you less than doing the checks yourself.
Choosing a reputable provider
If you decide to use a CRA, make sure you choose a reputable one. Look for a company that’s accredited, experienced, and has a good track record of compliance. Customer service is important, too. And of course, you want to make sure the provider complies with the Fair Credit Reporting Act (FCRA) and other applicable laws.
Checkr and iprospectcheck are two CRAs to consider.
In Summary
Running background checks in New Jersey can be a tricky process. It’s important to comply with all federal and state laws, including the Fair Credit Reporting Act (FCRA), the New Jersey Opportunity to Compete Law (also known as “Ban the Box”), and the New Jersey Clean Slate Law.
To conduct background checks effectively, you should have a written policy, get consent from the applicant, assess criminal records on a case-by-case basis, and follow the right procedures if you decide not to hire someone based on the results of a background check.
Using background checks appropriately is key to creating a safe workplace, reducing bias in hiring, and minimizing your company’s legal risks. Fairness and consistency should be the guiding principles behind every step of the process.