Job seekers in New Jersey are afforded the protection of federal and state employment laws that address issues such as wages, overtime compensation, and workplaces that are free of discrimination and harassment. Further, to protect job applicants’ privacy rights, New Jersey’s laws place limits on how employers can conduct background checks on prospective hires, how they can use information obtained from an applicant’s credit or criminal history, and the extent to which they can demand social media information.
Use of Credit History in Hiring
At the federal level, the Fair Credit Reporting Act (FCRA) restricts the use of credit reports to a small number of situations, including employment. New Jersey’s law largely mirrors the language of the FCRA. Under both laws, an employer must obtain a job applicant’s written consent in order to obtain a credit report. New Jersey also goes a step further by mandating that employers give job applicants a written disclosure stating that credit reports “commonly include information regarding the [applicant]’s character, general reputation, personal characteristics, and mode of living.” Presumably, this is to ensure that applicants understand that by giving the prospective employer written consent to obtain their credit report, the employer may be given access to very personal and sensitive information. In addition, the employer must also provide applicants with a copy of the report upon request.
Use of Criminal History in Hiring
Employers often screen out job applicants with criminal histories. This can obviously impede the ability of those who have paid their debt to society to get back on their feet and obtain gainful employment. Ban-the-Box (BTB) laws bar employers from asking about criminal history in the earliest stages of the hiring process. The “box” refers to the “yes/no” checkbox on many job applications inquiring about criminal history.
New Jersey’s BTB law, known as the “Opportunity to Compete Act,” applies to employers with at least fifteen employees. These employers may only ask about criminal history once the applicant has completed a job interview. While employers may then, at that juncture, consider an applicant’s criminal history, this prevents a situation where those applications with a box checked “yes” get thrown directly in the trash.
Access to Social Media by Employers
A little over a decade ago, a city in Montana made headlines when it required its job applicants to disclose all of their social media profiles along with the passwords to same. Numerous states moved to pass laws prohibiting employers from doing this, including New Jersey. Employers in New Jersey cannot ask job applicants to provide a password or any other form of access to “a personal account through an electronic communications device.” This includes social media and email accounts.
It is important to understand your privacy rights if you are seeking employment in New Jersey. If you have any questions with respect to those rights, please contact our office and one of our attorneys would be happy to assist you.
Sharon M. Flynn, Esq. is an associate with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.