physician, school nurse, custodian, maintenance worker, bus driver, security guard, secretary or clerical ... home healt
2017
This material is based upon work supported by the SAMHSA/CSAT Contract Order No. HHSP233201600248A. Any opinions, findings, and conclusions or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the SAMHSA/CSAT.
Helping Justice-Involved Individuals in New Jersey SAMHSA/Legal Action Center 2017
NEW JERSEY This section summarizes New Jersey State laws, policies and practices that promote or hinder successful re-entry for justice-involved New Jersey residents, particularly those with substance use or mental health disorders. Re-entry service providers, such as peer-support coaches, mentors, and outreach workers, will find that if they understand these laws and policies, they will have greater success helping individuals successfully re-enter. Providers also should read Section I of this guide, which summarizes federal barriers to jobs, housing, and higher education for people with criminal records. Section I also summarizes federal legal protections and initiatives to help people overcome these barriers.
EMPLOYMENT A broad range of New Jersey laws and policies restricts the ability of justice-involved individuals to work in specific jobs and industries. Section I highlighted the federal laws that limit employment in health care,i commercial transportation,ii insurance,iii financialiv and others. New Jersey State law also imposes criminal record restrictions on jobs and occupational licensure. Over 200 jobs and professions require some type of license or background check through a state or city agency.v These include:
NJ Department of Education Criminal History Review Unit (conducts criminal history background checks on employees—teacher, substitute teacher, teacher aide, a school physician, school nurse, custodian, maintenance worker, bus driver, security guard, secretary or clerical worker or for any other position which involves regular contact with pupils—and volunteers in the public, private handicap, and nonpublic schools in New Jersey).vi NJ Department of Law & Public Safety, Division of Consumer Affairs (licenses security guards, beauticians, cosmetologists, barbers, alarm installers, dental assistants, and many other professions).vii Each town and city mandates its own licensing requirements for taxi and livery cab driver.viii New Jersey Department of Health & Senior Services (conducts background check for home health aides and certified nursing assistants).ix New Jersey’s Industry-Specific Restrictions on Employment
In New Jersey, occupational licensing authorities may not disqualify a candidate solely on the basis of a criminal conviction or legal proceedings that focus on whether the applicant is a “disorderly person.”x The licensing authority must consider: Helping Justice-Involved Individuals in New Jersey SAMHSA/Legal Action Center 2017
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the nature and duties of the occupation; circumstances of the crime; date of the crime; age of person when crime was committed; whether the crime was an isolated event or repeated, social conditions that contributed to the crime; evidence of rehabilitation.xi
However, for some industries, New Jersey laws—in addition to federal statutes—create restrictions on employment based on criminal records. Even so, in most cases the applicant will have an opportunity to dispute a disqualification. For example, the New Jersey Department of Education is authorized by law to bar employment in a number of situations. The Commissioner of Education must notify the applicant, in writing, of the applicant's qualification or disqualification for employment or service. If the applicant is disqualified, the convictions which constitute the basis for the disqualification must be identified in the written notice to the applicant. The applicant has 14 days from the date of the written notice of disqualification to challenge the accuracy of the criminal history record information.xii
Background Screens
In New Jersey, like the rest of the country, new technology and expanded access to Federal and other databases containing criminal history information make it commonplace for employers to seek criminal history information about workers and job applicants. The result is that it is far more difficult for people to rebuild their lives. Employers and occupational licensing agencies may require fingerprint-based background screens to obtain records directly from the New Jersey State Police (NJSP), Identification & Information Technology Section (I&ITS), State Bureau of Identification (SBI) to determine the subject’s qualifications for employment, volunteer work or other performance of services. xiii These reports contain criminal and violation convictions that have not been expunged and pending charges. However, many employers often get criminal record reports through commercial reporting agencies in order to save on costs. Criminal history information provided through consumer reporting agencies is notoriously inaccurate or incomplete, including the provision of information about the wrong individual.xiv Most employers are not well-versed in reading criminal records or assessing what those records mean about a person’s potential risks. As a result, many jobseekers with criminal histories lose the opportunity to be fairly considered for employment, and employers potentially overlook numerous otherwise qualified and skilled candidates.
Legal Protections for Job-Seekers and Workers in New Jersey Although finding work with a criminal record remains an uphill battle, state and local laws can help individuals with criminal histories overcome these barriers in New Jersey. Helping Justice-Involved Individuals in New Jersey SAMHSA/Legal Action Center 2017
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New Jersey Employment Laws
In 2014, New Jersey enacted the “Opportunity to Compete Act,” (OCA), a statewide “Ban the Box” law, a term that refers to a check-off box that includes a criminal history question on many employment applications. The OCA prohibits most public and private employers from noting on job postings that they will not consider individuals with conviction records and prohibits them from asking about an applicant’s criminal record on a job application or until after the first interview. At that time, an employer may only consider pending charges or convictions that have not been expunged from the record. The law covers paid employment, internships, apprenticeships, temporary or season positions, or work through a temporary/employment agency.xv It also covers employers with 15 or more employees over a 20-week period. In addition, Newark (2012) and Atlantic City (2011) passed local “ban the box” ordinances.
Certificate of Rehabilitation
In New Jersey, some people convicted of crimes can receive a certificate of rehabilitation that suspends certain employment, occupational disabilities or forfeitures imposed after conviction. Judges and the Board of Parole can issue them. A 2007 law states that these certificates should be useful for public employment opportunities. The certificates can be used as evidence of a justice-involved person’s rehabilitation when applying for public employment as well as licenses and certification.xvi The certificates can be used as evidence of a justice-involved person’s rehabilitation when applying for public employment as well as licenses and certification.xvii The licenses covered include those required for real estate broker, driving instructor, cosmetologist, taxi cab driver, jockey, and psychologist, among others. However, individuals with certificates can still be subject to permanent criminal record restrictions in law enforcement and emergency management positions.xviii
Expungement
In January 2016, the New Jersey governor signed legislation that improved and expanded expungement relief for individuals with arrests that did not lead to conviction, convictions for certain crimes, and disorderly persons offenses.xix The legislation also eased the expungement process for many individuals who successfully completed drug court and treatment. Since April 2016, records of a person's arrests, detention or conviction are sealed from the public if the expungement is approved by a judge. Judges now have the authority to grant an expungement before the required 10 years stipulated in the law. Drug court graduates—people who have gone through the state's special probation program who have not been charged or convicted since their prior offense—may have their record expunged automatically unless a judge orders otherwise.xx Some people in New Jersey with criminal histories can file petitions to get specific violations expunged in three to five years. They can file once they have waited a certain period of time after their convictions, payment of fines or release from incarceration (the waiting periods vary for different kinds of crimes). Further, they can do so as long as they have not committed subsequent crimes and there are no other, prior crimes in their records. Eligible offenses include: Helping Justice-Involved Individuals in New Jersey SAMHSA/Legal Action Center 2017
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▪ Violation of municipal ordinances.xxi ▪ Disorderly persons offenses and petty disorderly persons offenses.xxii ▪ Some other adult crimes. Violent, sexual, child-related, and drug-related convictions are excluded, as are some crimes committed by public officers and employees.xxiii ▪ Crimes committed as juvenile delinquents.xxiv ▪ Drug possession, if under age 21 (but not drug offenses involving sale or distribution, except for marijuana or hashish).xxv
Fair Credit Reporting Act (FCRA)
As described in Section I, commercial background screening companies and the private-sector employers who use them most follow the federal Fair Credit Reporting Act (FCRA). FCRA requires procedures to ensure accuracy as well as timely communication with employees being screened. New Jersey also has a FCRA law that mirrors the federal law. The state statute prohibits reports from containing information about arrests that did not lead to a criminal conviction, arrests that led to a violation-level offense, and charges that did not result in a conviction. The background check can only include “adverse information” dating back seven years unless the job pays or will pay $75,000 or less.xxvi Employers and credit reporting agencies can be taken to court for violating either New Jersey or the federal FCRA.
Resources For detailed information on the specific agencies responsible for occupational licensing and employment requirements see the New Jersey License and Certification Guide. For information on Title VII, the Opportunity to Compete Act, federal and state FCRA laws and other legal protections, see the New Jersey Institute For Social Justice report, “New Jersey Job Applicants with Criminal Records: Rights During the Application Process.”
How Providers Can Help
Advise clients to get copies of arrest and conviction records – RAP sheets”—when possible. It is critical for job seekers to know exactly what is on their RAP sheet so they can describe their criminal record accurately, when asked. People with criminal histories usually do not know the disposition of certain charges or have forgotten some arrests. Finding out the details will enable them to present their criminal record to employers in the most accurate and straightforward way possible. They also may need to correct errors, which are common, before the employer sees them. See New Jersey Legal Services: “How Can I Get A Copy Or My Criminal History
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Record?” and “Clearing Your Record: A Six-Step Guide to Expunging Criminal Records in New Jersey,” available at https://www.lsnj.org/PublicationsVideos.aspx?Span=Publicaciones.aspx&Eng=Publicati onsVideos.aspx.
Inform clients about Certificates of Rehabilitation, as described above. Applications for these Certificates are available from the New Jersey State Parole Board.
Help clients gather evidence of rehabilitation. Useful suggestions for how to do this are in the Legal Action Center’s “How to Gather Evidence of Rehabilitation,” available at http://lac.org/resources/criminal-justice-resources/.
Refer to the New Jersey Institute for Social Justice guide, “New Jersey Job Applicants with Criminal Records: Rights During the Application Process,” for information that could help your client challenge an employment denial due to having a criminal record.
HOUSING Legal and Regulatory Barriers to Housing for Justice-Involved People in New Jersey People with criminal records in New Jersey confront a wide variety of restrictions to housing. Some of the greatest hurdles are federal statutes that apply to public and federally-assisted housing; they are described in Section I. These federal laws give the Department of Housing and Urban Development (HUD), public housing authorities (PHAs), and private landlords broad discretion to deny housing to people with criminal histories and their families. As is the case across the country, Public Housing Authorities (PHAs) and private landlords are able to set their own screening criteria. Many have flat bans against leasing to individuals convicted of a felony or other offense, without any individualized assessment of the risks or threat to safety from housing applicants, and without consideration of evidence of rehabilitation. New Jersey’s anti-discrimination law, which includes protection against housing discrimination, does not prohibit discrimination on the basis of criminal convictions. However, it does protect prospective renters or buyers based on other factors such as race, ethnicity, and other qualities as described in the federal Fair Housing Act. Drug convictions can result in tenant eviction. However, a tenant can avoid eviction by successfully completing a drug rehabilitation program or being admitted to and continuing such a program while on probation. These individuals will usually need a legal advocate to assist with fighting to maintain their residence. Helping Justice-Involved Individuals in New Jersey SAMHSA/Legal Action Center 2017
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Also, tenants can be evicted from private housing if they allow people who have been convicted of or pleaded guilty to a drug offense to occupy the premises.xxvii The eviction can’t happen more than two years after the conviction has been adjudicated or the person has been released from prison.
Opportunities for Housing
HUD Guidance
While Department of Housing and Urban Development (HUD) regulations have in the past given PHAs incentives to screen out and deny admission to certain applicants with unfavorable criminal histories, in recent years, HUD has issued guidance that could open up housing opportunities to this population. Specifically, in 2011, the Secretary of HUD issued letters to all PHA directors and private owners of federally-assisted housing to highlight their broad discretion to admit most people with criminal records into housing. It encouraged them to provide housing to otherwise-qualified tenants with criminal records and their families, and to avoid evicting them if they did not pose an unreasonable risk to the community.xxviii In November 2015xxix and April 2016,xxx HUD issued strong guidance to warn PHAs and private landlords that blanket bans that exclude people with criminal records from the opportunity to secure housing may violate the Fair Housing Act (See Section I).
Statewide Initiatives Parolee Aftercare and Transitional Housing (PATH): Funded by the New Jersey State Parole Board, PATH provides services to individuals suffering from serious mental illness; or suffering from serious mental illness and from substance abuse; and are homeless or at imminent risk of becoming homeless.xxxi
Successful Transition and Re-entry Series (STARS): STARS is a 12-week release preparatory program designed to address each major re-entry barrier faced by the returning offender, developed by the New Jersey Department of Corrections Office of Transitional Services. The challenges addressed include housing and family reunification.
How Providers Can Help When it comes to housing, those providing support to the formerly incarcerated and other justice-involved individuals should:
Advise clients to get copies of arrest and conviction records – “RAP sheets”— whenever possible. See “How Can I Get A Copy Or My Criminal History Record?” from New Jersey Legal Services, available at http://www.lsnjlaw.org/Consequences-
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Criminal-Charges/Prisoner-Re-entry/Expungement/Pages/Copy-CriminalRecord.aspx#.V1cHjKu2Imc.
Help clients gather evidence of rehabilitation. Useful suggestions for how to do this are in the Legal Action Center’s “How to Gather Evidence of Rehabilitation,” available at http://lac.org/resources/criminal-justice-resources/.
EDUCATION Legal and Regulatory Barriers to Higher Education for Justice-Involved People in New Jersey Justice-involved individuals in New Jersey, like the rest of the country, face a number of hurdles when they want to pursue higher education.
Financial Restrictions
If individuals are convicted of a crime while receiving federal financial aid for post-secondary studies, such as Pell Grants, they are prohibited from receiving more of this aid. The New Jersey Higher Education Assistance Authority follows the federal guidelines when awarding state financial aid, according to a report by the Coalition for Higher Education Reform. Some schools may not provide State assistance to students who are on probation or parole. There is no statewide policy on this matter. Individual schools should be contacted by applicants or students to determine if they are eligible.xxxii
Restrictions on Admissions
Public and private institutions of higher learning in New Jersey have free reign to refuse admissions because of applicants’ criminal histories. Moreover, questions about criminal records during the application process often discourage justice-involved people from following through with that process.
Initiatives –Changes In The Works
Pell Grant Pilot
In July 2015, the U.S. Department of Education announced that it would implement a Second Chance Pell Pilot program to test new models that allow incarcerated individuals to receive Pell Grants and pursue postsecondary education. The New Jersey Scholarship and Transformative Education in Prisons Consortium (NJ-STEP) was a selected pilot site through Rutgers Helping Justice-Involved Individuals in New Jersey SAMHSA/Legal Action Center 2017
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University-Newark.xxxiii NJ-STEP is an association of higher education institutions in New Jersey that works in partnership with the State of New Jersey Department of Corrections and New Jersey State Parole Board, to (a) provide higher education courses for all students under the custody of the State of New Jersey while they are incarcerated, and (b) assist in the transition to college life upon their release into the community. As of June 2016, the higher education institutions involved include Cumberland County Community College, Drew University; Essex County College; Mercer County Community College; Princeton University; Raritan Valley Community College; Rutgers University; Salem Community College; and The College of New Jersey (TCNJ). i
See, e.g., 42 U.S.C. § 1320a-7(a) (2006); 42 C.F.R. § 1001.101. See, e.g., 49 U.S.C. § 44936 (air transportation); 46 U.S.C. § 70105 (port worker TWIC card). iii See, e.g., 18 U.S.C. § 1033(e)(1)(A). iv See, e.g., 12 U.S.C. § 1829 (FDIC insured banks); 12 U.S.C. § 5104(b)(2) (mortgage lending). v STATE OF NEW JERSEY DEP’T. OF LABOR AND WORKFORCE DEVELOPMENT, CENTER FOR OCCUPATIONAL EMPLOYMENT INFORMATION, Licensed Occupations in New Jersey, http://lwd.dol.state.nj.us/labor/forms_pdfs/coei/licenses.xls. vi See e.g., N.J.S.A.18A:6-7.1 ET SEQ., N.J.S.A.18A:39-17 ET SEQ., N.J.S.A. 18A:6-4.13 ET SEQ., AND N.J.S.A. 18A:12-1 ET SEQ. vii See NEW JERSEY DIVISION OF CONSUMER AFFAIRS, LICENSING BOARDS AND COMMITTEES, http://www.njconsumeraffairs.gov/Pages/boards-committees.aspx. viii See STATE OF NEW JERSEY MOTOR VEHICLE COMMISSION, COMMERCIAL VEHICLE AND REGISTRATION INFORMATION, CODE 13. http://www.state.nj.us/mvc/Commercial/Commercialvehicle.htm#13. ix See STATE OF NEW JERSEY DEP’T. OF HEALTH, LICENSING AND CERTIFICATION CREDENTIALS, http://www.state.nj.us/health/healthfacilities/certification-licensing/nurse-aide-pc-assistant/. x N.J.S.A. 2A:168A-2. xi Id. xii N.J. Rev Stat § 18A:6-7.3 (2013). xiii N.J.A.C. 13:59-1.2. xiv YU, P. & DIETRICH, S. (2012). BROKEN RECORDS: HOW ERRORS BY CRIMINAL BACKGROUND CHECKING COMPANIES HARM WORKERS AND BUSINESSES. NATIONAL CONSUMER LAW CENTER, https://www.nclc.org/images/pdf/prreports/broken-records-report.pdf. xv N.J.S.A. 34:6B-11. xvi See, e.g., N.J.S.A. 2A:168A-7 et seq.; See STATE OF NEW JERSEY PAROLE BOARD. Certificate of Suspending Certain Employment, Occupational Disabilities or Forfeitures Informational Sheet, http://www.nj.gov/parole/docs/COR%20Info%20Sheet.pdf. xvii Id. xviii Id. xix See, e.g., N.J.S.A. 2C:52-2; See A206 available at ftp://www.njleg.state.nj.us/20142015/A0500/206_I1.HTM. xx N.J.S.A. 2C:35-14. xxi N.J.S.A. 2C:52-4. xxii N.J.S.A. 2C:52-3. xxiii N.J.S.A. 2C:52-2. xxiv N.J.S.A. 2C:52-4.1. xxv N.J.S.A. 2C:52-5. xxvi N.J.S.A. 56:11-28 to -41. xxvii See, e.g., N.J.S.A. 2A:18-61.1. xxviii See Letter from Shaun Donovan, Sec’y of Housing and Urban Dev., & Sandra B. Henriquez, Assistant Sec’y for Public Housing and Indian Housing, to PHA Executive Director, (Jun. 17, 2011), https://csgjusticecenter.org/documents/0000/1130/HUD_letter.pdf; and see Letter from Shaun Donovan, Sec’y of Housing and Urban Dev., & Carol J. Galante, Acting Assistant Secretary for Housing, Federal Housing ii
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Commissioner, to Owners & Agents, https://csgjusticecenter.org/documents/0000/1344/3.30.12_MFamily_properties_Re-entry_memo_6__2_.pdf xxix See U.S. DEP’T. HOUSING AND URBAN DEV., GUIDANCE FOR PUBLIC HOUSING AGENCIES (PHAS) AND OWNERS OF FEDERALLY-ASSISTED HOUSING ON EXCLUDING THE USE OF ARREST RECORDS IN HOUSING DECISIONS, 2015. NOTICE PIH 2015-19 https://portal.hud.gov/hudportal/documents/huddoc?id=PIH2015-19.pdf. xxx SEE U.S. DEP’T OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF GENERAL COUNSEL GUIDANCE ON APPLICATION OF FAIR HOUSING ACT STANDARDS TO THE USE OF CRIMINAL RECORDS BY PROVIDERS OF HOUSING AND REAL ESTATE-RELATED TRANSACTIONS, WASHINGTON, DC, (2016), https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf. xxxi The PATH program is administered through the New Jersey Association on Corrections, see NEW JERSEY ASS’N ON CORRECTION, SANFORD BATES HOUSE PATH, http://www.njaconline.org/11.html. xxxii NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE, Legal Barriers to Prisoner Re-entry in New Jersey: Education, (2006) http://www.njisj.org/assets/documents/Education.7-06.pdf. xxxiii See RUTGERS UNIVERSITY, NJ-STEP Partners, RU-N and RVCC, Will Participate in U.S. DOE’s Second Chance Pell Pilot Program, (Jun. 4, 2016), http://www.newark.rutgers.edu/news/nj-step-partners-ru-n-and-rvccwill-participate-us-does-second-chance-pell-pilot-program.
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