Under New Jersey's Opportunity to Compete Act (OTCA), covered employers are prohibited from inquiring about a candidate's criminal history during the initial application process and from stating in job advertisements that candidates possessing criminal records will not be considered for employment.

The enforcement sweep conducted by the state reflects the largest of its kind to date. All 15 employers were found to have violated the state's ban on incorporating prohibited language into employment advertising. Three of the fifteen were issued a Notice of Violation and subsequently reached agreements with the State, eventually entering into agreements for Assurance of Voluntary Compliance. Part of this assurance agreement includes that the employers must:

• Immediately cease the development/circulation of employment advertisements excluding individuals who possess criminal records;
• Adopt written policies compliant with the OTCA; and
• Pay all associated penalties (reduced to $250 from $1,000 based on good faith cooperation and pledges of future compliance by the three employers).

The three companies that entered into these agreements and the prohibited language used in their respective advertisements are listed below.

• Ferraro Foods, Inc. - "Must maintain Criminal History free of Misdemeanors and Felonies"
• Roadrunner Logistics, Inc. - "No criminal record" and "Must have a clean background check"
• Simco Logistics, Inc. - "Must have a clean Background Check - no criminal convictions"

The remaining twelve employers agreed to amend job advertising practices as a result of this enforcement sweep.

Employers are encouraged to routinely review internal hiring protocols and job advertisements to ensure all practices and language are compliant with all applicable "Ban-the-Box" related laws.

Posted: November 9, 2021