The New Jersey Opportunity to Compete Act Conference Presentations/The New Jersey... · Opportunity to Compete Act What is it? New law that went into effect on March 1, 2015. Sometimes

Presented By: Stephanie E. Farrell, Esquire

The New Jersey Opportunity to Compete Act

What is it?

New law that went into effect on March 1, 2015.

Sometimes referred to as “Ban the Box” legislation.

The New Jersey Opportunity to Compete Act

Why was it enacted? Criminal background checks have increased dramatically in

recent years with estimates of 90% of large employers in the US now conducting them.

Barriers to employment based on criminal records stand to affect an estimated 65 million adults in the US.

Removing obstacles to employment for people with criminal records provides economic and social opportunities to a large group of people living in NJ.

Securing employment significantly reduces the risk of recidivism for persons with criminal records.

The New Jersey Opportunity to Compete Act

To whom does it apply? Applies to “employers” in the State of New Jersey.

“Employer” is defined as any person, company, corporation, firm, labor organization or association which employs 15 or more employees for over 20 calendar weeks per year (includes the State, any county or municipality or any instrumentality thereof).

Also applies to job placement and referral agencies and other employment agencies.

The New Jersey Opportunity to Compete Act

What changes?

The Initial Employment Application Process

Begins when an applicant first makes an inquiry to an employer about a prospective employment position or job vacancy or when an employer first makes and inquiry to an applicant for employment about a prospective employment position or job vacancy.

Ends when an employer has conducted a first interview, whether in person or by any other means.

The New Jersey Opportunity to Compete Act

What changes?

Advertising and solicitation for employees

When posting a job, NJ employers covered by the statute can no longer state in the advertisement that employees with a criminal history will not be considered.

Written Application

No inquiries regarding an applicant’s criminal record.

Initial Interview

No inquiries regarding an applicant’s criminal record UNLESS the applicant voluntarily discloses such information either on the written application or during the interview.

The New Jersey Opportunity to Compete Act

Exceptions?

Voluntary disclosure by applicant.

After the Initial Employment Application Process has concluded.

Employment sought or being considered is for a position in law enforcement, corrections, the judiciary, homeland security or emergency management.

The New Jersey Opportunity to Compete Act

Exceptions?

Employment sought is for a position where a criminal history record background check is required by law, rule or regulation.

Arrest or conviction would or may preclude the person from holding such employment as required by any law, rule or regulation.

Law, rule or regulation restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees.

The New Jersey Opportunity to Compete Act

Exceptions?

Employment sought is for a position designated by the employer to be part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons who have been arrested or convicted of one or more crimes or offenses.

The New Jersey Opportunity to Compete Act

What steps do you need to take now?

Revise your advertisements.

Revise your written applications.

Train your management team.

The New Jersey Opportunity to Compete Act

Penalties?

No private cause of action.

First violation:

Civil Penalty not to exceed $1,000.00.

Second violation:

Civil Penalty not to exceed $5,000.00.

Subsequent violations:

Civil Penalty not to exceed $10,000.00 per violation.

The New Jersey Opportunity to Compete Act

What does it all mean?

Employers may still condition employment on the successful completion of a criminal background check.

Some extra steps have been added to the onboarding process to give individuals with a criminal background a fair chance at making a good first impression.

Employers should still be aware of disparate impact concerns.

The New Jersey Opportunity to Compete Act

Also Known As …

The FLSA

Wage and Hour Law

Overtime Law

The Freakin’ Lousy Stinkin’ Act!!!

The Fair Labor Standards Act

First enacted in 1938 to “put a ceiling over hours and a floor under wages.”

Objective to eliminate “labor conditions detrimental to the maintenance of the minimum standards of living necessary for health, efficiency and well being of workers.”

Comprehensive piece of legislation that has a complex set of regulations and case law - it even has its own “Field Operations Handbook.”

The Fair Labor Standards Act

So why is it so freakin’ lousy?

Collective Actions

Liquidated Damages

Attorneys’ Fees of Successful Employee(s) Paid by Employer

Individual Liability

The Fair Labor Standards Act

What do you need to know now?

Requires payment of minimum wage.

Federal … $7.25

New Jersey … $8.38

Requires payment of overtime to non-exempt employees.

1.5 times the regular rate for hours in excess of 40 in a given work week

The Fair Labor Standards Act

What else do you need to know now?

Record Keeping Requirements

Payroll Records (3 years)

Basic employment & earnings records (2 years)

Records of additions to or deductions from wages (2 years)

Other records required to be maintained: contracts & collective bargaining agreements, wage rate tables, sales and purchase records, order, shipping and billing records

The Fair Labor Standards Act

Exemptions

Unless a particular exemption applies, employees are “non-exempt” and entitled to overtime for all hours worked in excess of 40 in a given work week.

Familiar Exemption Categories

Professional

Executive

Administrative

The Fair Labor Standards Act

Exemptions

Seaman (29 C.F.R. § 783.31)

Performs services aboard a vessel as master - or subject to the authority, direction, and control of the master - primarily as an aid in the operation of such vessel as a means of transportation, provided he/she performs no substantial amount of work of a different character.

Includes vessels navigating inland waters as well as ocean-going and coastal vessels.

The Fair Labor Standards Act

Exemptions

Seaman (continued)

If working on a foreign vessel, exempt from minimum wage and overtime requirements of the FLSA.

If working on an American Vessel, subject to the minimum wage but exempt from overtime requirements.

“American vessel” includes “any vessel which is documented or numbered under the laws of the United States.”

The Fair Labor Standards Act

Steps to ensure compliance…

Keep proper records.

Evaluate your job classifications.

Implement a time clock or sign in/out policy.

Implement an overtime policy requiring that all overtime be approved in advance.

NOTE: Even if overtime is not approved, if it is worked it MUST BE PAID!!! To address this issue, discipline employees who violate the policy.

The Fair Labor Standards Act

THE END p.s. Recovery4Jersey (R4J) is an incentive program in NJ to encourage employers to hire and re-train displaced New Jersey workers by reimbursing up to $10,000.00 of the employee’s wages.

The Fair Labor Standards Act