Expungement of New Jersey Criminal Records

New Jersey Expungement Law and Employers
Most people wanting to expunge a New Jersey criminal record do so in order to give their careers a boost. With 80% of employers conducting background checks on potential hires or current employees, a conviction or arrest record appearing on these checks can cripple an otherwise deserving person’s chance of advancement.

An employer might be able to discriminate using an arrest record, depending on how the employer uses the information. Unlike some states that forbid an employer from asking certain questions, New Jersey has not enacted any statutes controlling whether employers may obtain criminal history information for employees or job applicants. Under New Jersey law, a person or non-governmental entity of any state who is evaluating whether or not to employ an applicant is authorized to obtain from the NJ State Bureau of Identification all New Jersey criminal history record information. All records of pending arrests and charges for violations of New Jersey laws will be released, unless expunged. The single best way to expanding your job options is to expunge your criminal record.

An employer may not use an expunged record and should not be able to even locate it. A person who has had his or her record expunged does not have to disclose the fact that the arrest or conviction occurred. Under New Jersey law, records that have been expunged are deemed not to have occurred, which means that job applicants or current employees do not have to admit that the events ever happened.

What Records an Employer Can Get from the New Jersey Police and Courts
New Jersey criminal records that have not been expunged are easy to come by for employers. Under New Jersey law N.J.A.C. 13:59-1.2(a)(2), a person or non-governmental entity of any state who is evaluating whether or not to employ an applicant is authorized to obtain from the NJ State Bureau of Identification all New Jersey criminal history record information. All records of pending arrests and charges for violations of New Jersey laws will be released, unless expunged. Records are available back to 1951 and are only destroyed upon the death of the subject. If a “name check” request is submitted, which means a request that is not accompanied with the applicant’s fingerprints, only convictions and basic arrest information will be returned. If fingerprints are submitted, the subject’s full criminal history will be returned. Dismissals, acquittals, and not-guilty verdicts are not sent to employers.

Additionally, New Jersey courthouses contain public access terminals from which any user can obtain basic case information on any criminal case statewide. Promis/Gavel is the statewide system developed for use by New Jersey prosecutors, state police, and courts only that contains full criminal history. A filtered Promis/Gavel Public Access (PGPA) system is available at the public terminals, which does not contain offenses or petty offenses recorded in the municipal courts unless filed with other, indictable offenses. A standard copy fee is charged for printing pages directly from the PGPA system, yet the terminals are free to use. The Administrative Office of the Courts has issued a press statement in which it states that the records obtained through the PGPA system do not constitute criminal history records checks, but the system is still often used for screening purposes.

By having a record expunged, a person previously convicted of a crime greatly limits the number of people with access to that information. Getting an order of expungement avoids a situation where an employer might unjustly exclude a person convicted of a crime.

Protections by the Federal Government
Federal Law provides protections and regulations governing the ways in which potential employers may screen using criminal history information in addition to and sometimes superceding the laws of the 50 states. When it applies, the Fair Credit Reporting Act (FCRA) controls what type of information can be contained on a report as well as what notifications a potential employer must provide to the applicant before and after using a criminal history report. Despite the somewhat confusing name, the FCRA controls what data may be reported on a criminal background check as well as a credit report.

The FCRA was enacted in order to ensure that consumer reporting agencies report on targets of background investigations fairly, impartiality, and with respect for the subject’s right to privacy. Furthermore, the FCRA was designed to require consumer reporting agencies to adopt reasonable procedures that were fair and equitable to the target of the background check, ensuring the information reported is accurate, relevant, and properly used. A person who willfully or negligently fails to comply with the FCRA reporting requirements may face civil liability. A person who obtains information controlled by the FCRA under false pretenses opens him- or herself to criminal liability, including fines and imprisonment.

The FCRA defines “consumer report” as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, … character, general reputation, personal characteristics, or mode of living which is used or expected to be used … as a factor in establishing the consumer’s eligibility for … employment purposes.” Furthermore, the FCRA defines “employment purposes” as “a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.”

An employer intending to use a criminal record as a factor in an employee’s potential or continued employment is required by the FCRA to make a “clear and conspicuous disclosure,” in writing, to the employee. This disclosure must be given before the report is requested from a vendor and must be its own, separate document. Verbally telling an employee that a criminal records inquiry will be made or hiding the disclosure in the middle of an application will not be sufficient under the FCRA.

An employer is also required to make notices both before and after taking adverse action upon a current or potential employee based in whole or in part on a criminal record. Adverse action is defined as “any … decision for employment purposes that adversely affects any current or prospective employee.” The employer is required to provide the applicant with a copy of the report used to make the decision to take adverse action as well as a written description of the applicant’s rights from the Federal Trade Commission. The purpose of this requirement is to give an applicant a chance to explain or discuss the report with the employer, though the employer is not required to take any action or change his or her decision in any way regardless of what the applicant relates. Once the adverse action is taken, the employer is required to provide the rejected applicant or former employee with additional notice of the action, the contact information of the agency from which the information was acquired, and another copy of the report. These requirements are subject to an exception for employers hiring truck drivers by phone, mail, or computer.