Bill Text: NJ S1687 | 2016-2017 | Regular Session | Introduced
Bill Title: Removes certain bars to employment for convicted offenders.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed - Dead) 2017-12-07 - Received in the Assembly without Reference, 2nd Reading [S1687 Detail]
Download: New_Jersey-2016-S1687-Introduced.html
Sponsored by:
Senator RAYMOND J. LESNIAK
District 20 (Union)
Senator SANDRA B. CUNNINGHAM
District 31 (Hudson)
SYNOPSIS
Removes certain bars to employment for convicted offenders.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning rehabilitation of convicted offenders and amending and supplementing various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) For the purposes of P.L. , c. (pending before the Legislature as this bill):
"Collateral sanction" means a penalty, restriction, disability, forfeiture, bar, or disadvantage, however denominated, related to employment or occupational licensing imposed on a person pursuant to State law that applies by operation of law as a consequence of the person's conviction for a crime or offense. The term shall not include imprisonment, probation, parole, supervised release, forfeiture, restitution, fine, assessment, costs of prosecution, or any sanction imposed under federal law or regulation.
"Crimes not subject to relief" means a conviction for any of the following crimes: a crime of the first degree; a crime of the second degree defined in chapters 11, 13, 14, and 24 of Title 2C of the New Jersey Statutes; a violation of P.L.2002, c.26 (C.2C:38-1 et seq.); a crime requiring registration pursuant to section 2 of P.L.1994, c.133 (C.2C:7-2); or a conspiracy or attempt to commit any of these crimes.
"Public employment" means employment by a State, county, or municipal department, board, office, or agency, but shall not include elected office or employment in law enforcement, corrections, the judiciary, a position related to homeland security or emergency management, or any similar position which provides an employee with access to sensitive information that could pose a risk
to public health, welfare, or safety.
"Public entity" means a State, county, or municipal department, board, officer, or agency authorized to consider an applicant for public employment or pass upon the qualifications of any applicant for a license or certificate of authority or qualification to engage in the practice of a profession or business, except a license to practice law, or for admission to an examination to qualify for a license or certificate.
"Qualified applicant" means a person who may be sentenced to, is serving, or has completed a probation or parole supervisory term or a person who is convicted of a crime not subject to relief as defined in this section. For a person seeking a certificate of suitability for employment from a supervising authority, "qualified applicant" means a person who has served at least 180 days of a supervisory term.
"State law" means a statute, regulation, rule or ordinance.
"Supervising authority" shall mean the Probation Division of the Superior Court in the case of a person who is serving or has completed a term of probation or the State Parole Board in the case of a person who is serving or has completed a term of parole supervision.
2. Section 2 of P.L.1968, c.282 (C.2A:168A-2) is amended to read as follows:
2. Notwithstanding the contrary provisions of any law or rule or regulation issued pursuant to law, [no State, county or municipal department, board, officer or agency, hereinafter referred to as "licensing authority" authorized to pass upon the qualifications of any applicant for a license or certificate of authority or qualification to engage in the practice of a profession or business or for admission to an examination to qualify for such a license or certificate may] a public entity shall not disqualify or discriminate against an applicant for [a] public employment or an occupational license or certificate, or [an application] an applicant for admission to a qualifying examination solely on the grounds that the applicant has been convicted of a crime, or adjudged a disorderly person, after the applicant has served the sentence for the offense, except that a [licensing authority] public entity may disqualify or discriminate against an applicant [for a license or certificate] if the applicant is permanently disqualified from holding public office, position or employment pursuant to subsection d. of N.J.S.2C:51-2 [or any disqualifying criminal activity set forth in subsection a. of section 7 of P.L.2009, c.53 (C.17:11C-57) is applicable] ; the applicant is seeking a license or certification to act as a mortgage loan originator, or residential mortgage lender or residential mortgage broker as a qualified individual licensee and is disqualified from obtaining the license pursuant to the "New Jersey Residential Mortgage Lending Act," sections 1 through 39 of P.L.2009, c.53 (C.17:11C-51 et seq.); the applicant has been convicted of a crime of the first degree; a crime of the second degree defined in chapters 11, 13, 14, and 24 of Title 2C of the New Jersey Statutes; a violation of P.L.2002, c.26 (C.2C:38-1 et seq.); a crime requiring registration pursuant to section 2 of P.L.1994, c.133 (C.2C:7-2); or a conspiracy or attempt to commit any of these crimes; or if a conviction for a crime relates adversely to the occupation, trade, vocation, profession, or business for which the license or certificate is sought. In determining [that] whether a conviction for a crime relates adversely to the occupation, trade, vocation, profession, or business, the [licensing authority] public entity shall [explain in writing how] conduct an individualized assessment of the applicant to determine if the following factors, or any other factors[, relate to the license or certificate sought] would impair the applicant's fitness or ability to perform the duties and responsibilities of the occupation, trade, vocation, profession, or business, or would create a risk to the public welfare or safety:
a. The nature and duties of the occupation, trade, vocation, profession, or business, [a] or license or certificate for which the person is applying;
b. Nature and seriousness of the crime;
c. Circumstances under which the crime occurred;
d. [Date of the crime] Amount of time that has elapsed since the crime was committed;
e. Age of the person when the crime was committed;
f. Whether the crime was an isolated or repeated incident;
g. Social conditions which may have contributed to the commission of the crime;
h. Any evidence of rehabilitation, including good conduct [in prison or in the community,] while incarcerated, under the charge of the supervising authority, or living in the community; a certificate of suitability for employment issued pursuant to section 2 of P.L.2007, c.327 (C.2A:168A-8), employment history, successful participation in professional counseling or [psychiatric] treatment [received], acquisition of additional academic or vocational [schooling] education, successful participation in [correctional] work-release or job training programs, [or] the evaluation or recommendation of persons who have or have had the applicant under their employ or supervision, or any verifiable reference and endorsement from a person who has interacted with the applicant within the community on a regular basis; and
i. health-related conditions, including mental health and drug or alcohol addiction, which may have contributed to the commission of crime and the person's progress toward mitigating those conditions.
Where an adverse decision is issued against an applicant solely due to a conviction for a crime, the public entity shall explain in writing how the previous factors, or any other factors, relate to the applicant's lack of fitness or ability to perform the duties and responsibilities of the occupation, trade, vocation, profession, or business, or license or certificate, or would create a risk to public welfare or safety. The public entity shall notify the applicant of any adverse decision made pursuant to this section and shall, upon request, provide the applicant with a copy of its written explanation. An applicant aggrieved by the decision of the public entity may appeal the decision to the Civil Service Commission or other State or local government agency with statutory or regulatory oversight over the employment or licensure decisions of the public entity that issued the decision.
Nothing in this section shall be deemed to limit the hiring or licensing authority of a public entity based on an applicant's qualifications or lack of qualifications for employment or licensure.
(cf: P.L.2009, c.53, s.71)
3. Section 3 of P.L.1968, c.282 (C.2A:168A-3) is amended to read as follows:
The presentation to a [licensing authority] public entity of evidence of a pardon or of the expungement of a criminal conviction, pursuant to N.J.S.[2A:164-28] 2C:52-1 et seq., or of a certificate [of] issued by an official representative of the Federal or State Parole Board, [or of] the Chief Probation Officer of [a] the United States District Court or [a county] a Chief Probation Officer of the Probation Division of the Superior Court of New Jersey who has supervised the applicant's parole or probation, attesting that the applicant has completed his sentence or met any other applicable requirements for issuance of a certificate, and achieved a degree of rehabilitation [indicating] to the extent that [his] the applicant engaging in the proposed employment [would not be incompatible] or occupation is compatible with the welfare of the applicant and society, shall serve as evidence of the applicant's rehabilitation and suitability for employment or occupational licensing. The presentation of the evidence or certificate shall preclude a [licensing authority] public entity from disqualifying or discriminating against the applicant, except as provided in section 2 of P.L.1968, c.282 (C.2A:168A-2).
(cf: P.L.1974, c.161, s.4)
4. Section 5 of P.L.1974, c.161 (C.2A:168A-4) is amended to read as follows:
A [licensing authority] public entity may disqualify or discriminate against an applicant for a license or certificate on the grounds that the applicant has within [4] four months of the application for admission to a qualifying examination been addicted to the habitual use of drugs or intoxicating liquors.
(cf: P.L.1974, c.161, s.5)
5. Section 6 of P.L.1974, c.161 (C.2A:168A-5) is amended to read as follows:
Notwithstanding the contrary provisions of any law or rule or regulation issued pursuant to law, any [licensing authority] public entity may permit any person subject to correctional supervision in this State to engage in regulated employment pursuant to an approved program of vocational or educational rehabilitation.
(cf: P.L.1974, c.161, s.6)
6. Section 7 of P.L.1974, c.161 (C.2A:168A-6) is amended to read as follows:
This act shall not be applicable to employment within any law enforcement agency, court, or correctional institution; however, [nothing herein shall preclude] a law enforcement agency [in its discretion from adopting], court, or correctional institution may adopt the policies and procedures set forth [herein] in this act.
(cf: P.L.1974, c.161, s.7)
7. (New section) a. A qualified applicant may petition the court at sentencing or upon completion of a sentence for an order of limited relief from one or more collateral sanctions imposed under State law.
b. In addition to information regarding the applicant's identity and criminal history, the petition shall include:
(1) a description of each collateral sanction from which the applicant is seeking relief and a summary of the reasons the applicant believes that relief from the collateral sanction is needed;
(2) a summary of the applicant's employment history, specifying the name of each employer, dates of employment, and positions held;
(3) verifiable references and endorsements;
(4) the name of one or more immediate family members of the applicant, or other persons with whom the applicant has a close relationship, who support the applicant's reentry plan; or
(5) other information that the court may require.
c. A qualified applicant seeking relief shall serve a copy of the application, together with a copy of all supporting documents pursuant to the Rules of Court, upon the county prosecutor of the county where the court is located within five days from the date of the order setting the date for the hearing upon the matter. The county prosecutor shall provide notice of the application to any known victim of the applicant's crimes, as required by law.
d. The court may grant an order of limited relief for one or more specific collateral sanctions if, after reviewing the petition, the applicant's criminal history, any statement filed by a victim or a prosecutor, and any other relevant evidence, it finds that the applicant has established that:
(1) granting the relief will materially assist the applicant in obtaining or maintaining employment or furthering the applicant's education;
(2) the applicant has substantial need for the relief requested in order to live a law-abiding life; and
(3) granting the relief would not pose an unreasonable risk to the safety or welfare of the public or any person.
e. When relief is granted, the court's order shall specify:
(1) each collateral sanction from which relief is granted; and
(2) any restriction that may be imposed on the relief.
f. An order issued pursuant to this section relieves a collateral sanction to the extent provided in the order.
g. Notwithstanding an order of limited relief from a collateral sanction imposed by State law pursuant to this section, a person or entity responsible for deciding whether to grant the employment, benefit or opportunity may, after an individualized assessment of the applicant and the circumstances of the crime, deny the employment, benefit or opportunity if it is determined that the elements and conduct of the crime are substantially related to the employment, benefit or opportunity and may present a risk to the safety of a person or the public. Nothing in this section shall be deemed to limit an employer's hiring or licensing authority based on an applicant's qualifications for employment or licensure.
h. Any court that has issued an order of limited relief pursuant to this section may at any time issue a new order to expand the relief previously granted, provided, however, that the person has not been charged with or convicted of a crime since initial relief was granted. The provisions of this section shall continue to apply to the issuance of any new order.
i. An order granting relief from a collateral sanction or sanctions pursuant to this section shall be presumptively revoked by the court and all sanctions shall be restored if the applicant is convicted of a crime subsequent to the issuance of the order or otherwise violates a condition of his sentence.
8. Section 1 of P.L.2007, c.327 (C.2A:168A-7) is amended to read as follows:
1. a. Notwithstanding any law to the contrary, a certificate of suitability for employment may be issued to a qualified applicant by a court or supervising agency in accordance with the provisions of [this act that suspends certain disabilities, forfeitures or bars to employment or professional licensure or certification that apply to persons convicted of criminal offenses] section 2 of P.L.2007, c.327 (C.2A:168A-8) to assist the applicant in obtaining or maintaining employment.
b. A certificate issued pursuant to [this act shall have the effect of relieving disabilities, forfeitures or bars, except those established or required by federal law, to] section 2 of P.L.2007, c.327 (C.2A:168A-8) may:
(1) relieve a qualified applicant of one or more collateral sanctions related to:
[(1)] (a) public employment, as defined in [this section] section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill) except if subsection d. of N.J.S.2C:51-2 is applicable;
[(2)] (b) qualification for a license or certification to engage in the practice of a profession, occupation or business, except the practice of law, or as a mortgage loan originator, or residential mortgage lender or residential mortgage broker as a qualified individual licensee, pursuant to the "New Jersey Residential Mortgage Lending Act," sections 1 through 39 of P.L.2009, c.53 (C.17:11C-51 et seq.); or
[(3)] (c) admission to an examination to qualify for that license or certification, except for the bar examination, a qualified written test for a mortgage loan originator, or residential mortgage lender or broker as a qualified individual licensee, or an examination for a law enforcement, homeland security, or emergency management position[.
A certificate issued pursuant to this act may be limited to one or more enumerated disabilities, forfeitures or bars, or may relieve the subject of all disabilities, forfeitures or bars that may be affected by the act] ; and
(2) provide a public or private employer who relies on the certificate of suitability for employment when hiring a qualified applicant with immunity from civil liability as follows:
(a) In a judicial or administrative proceeding alleging negligence or other fault, a certificate of suitability for employment issued to a qualified offender pursuant to section 2 of P.L.2007, c.327 (C.2A:168A-8) may be introduced as evidence of an employer's due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the offender to whom the certificate was issued if the employer knew of the certificate at the time of the alleged negligence or other fault;
(b) In any proceeding on a claim against an employer for negligent hiring, a certificate of suitability for employment issued to a person pursuant to this section shall provide immunity for the employer with respect to the claim if the employer knew of the certificate at the time of the alleged negligence;
(c) An employer who hires a qualified applicant who has been issued a certificate of suitability for employment under this section may be held liable in a civil action based on the retention of the qualified applicant as an employee only if:
(i) The employee, after being hired, subsequently demonstrates danger or is convicted of a crime;
(ii) The employee is retained by the employer as an employee after the demonstration of danger or the conviction;
(iii) The plaintiff proves by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of the crime; and
(iv) The employer, after having actual knowledge of the employee's demonstration of danger or conviction of a crime, was willful in retaining the person as an employee.
c. [For purposes of this act:
(1) "Public employment" shall mean employment by a State, county, or municipal agency, but shall not include elected office, or employment in law enforcement, corrections, the judiciary, in a position related to homeland security or emergency management, or any position that has access to sensitive information that could threaten the public health, welfare, or safety.
(2) "Qualified offender" refers to a person who has one criminal conviction or who has convictions for more than one crime charged in separate counts of one indictment or accusation. Multiple convictions charged in two indictments or two accusations, or one indictment and one accusation filed in the same court prior to entry of judgment under any of them, shall be deemed to be one conviction. Convictions of crimes entered more than 10 years prior to an application for a certificate under this act shall not be considered in determining whether a person has one criminal conviction. In the case of a person seeking relief at the time of sentencing, qualified offender means a person who will have one conviction, as set forth in this paragraph, upon sentencing and issuance of the judgment of conviction.
(3) "Supervising authority" shall mean the court in the case of a person who was subject to probation or who was not required to serve a period of supervision, or the State Parole Board in the case of a person who was under parole supervision] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).
d. A certificate of suitability for employment issued pursuant to section 2 of P.L.2007, c.327 (C.2A:168A-8) may be limited to one or more specific collateral sanctions, or may relieve all collateral sanctions enumerated in paragraph (1) of subsection b. of this section and the statutory immunity from negligent hiring under paragraph (2) of subsection b. of this section may be granted for one or more specific prospective employers.
e. A certificate issued by a supervising authority pursuant to section 2 of P.L.2007, c.327 (C.2A:168A-8) shall apply only to a specific collateral sanction and the statutory immunity under paragraph (2) of subsection b. of this section shall apply only to a specific prospective employer, but may be reissued to assist in subsequent employment opportunities if the applicant continues to qualify for relief under the provisions of P.L. , c. (pending before the Legislature as this bill).
f. The certificate shall specify whether it relieves collateral sanctions or grants statutory immunity from negligent hiring, or both, the scope of this relief, and any conditions or restrictions regarding the certificate.
(cf: P.L.2009, c.53, s.72)
9. Section 2 of P.L.2007, c.327 (C.2A:168A-8) is amended to read as follows:
2. [A certificate may be issued pursuant to this act as follows:]
a. (1) A court, in its discretion, may [issue] consider an application for a certificate of suitability for employment before or at the time of sentencing to aid a qualified applicant in obtaining or maintaining existing employment if the applicant:
(a) [is a qualified offender, who is being sentenced to a non-incarcerative sentence for a second, third or fourth degree crime] is not sentenced to a term of incarceration;
(b) has established that a specific occupational licensing or employment disqualification, forfeiture, or bar[, will apply to him,] applies and may endanger [his] the qualified applicant's ability to maintain existing [public] employment or to obtain employment for which [he] the qualified applicant has made application, or to engage in a business enterprise for which a license or certification is required;
(c) has no pending criminal charges, and there is no information presented that such a charge is imminent; and
(d) has established that the relief is consistent with the public interest.
(2) [A certificate issued under this subsection shall apply only to the specific disability, forfeiture or bar that is affected, which must be specifically described in the certificate document]
The court may issue the certificate if, after reviewing the application, the qualified applicant's criminal history, any statement presented by a victim or a prosecutor, and any other relevant evidence, it finds that:
(a) granting the certificate will materially assist the qualified applicant in obtaining or maintaining employment;
(b) granting the certificate will aid the qualified applicant in living a law-abiding life and is in the public interest; and
(c) granting the certificate would not pose an unreasonable risk to the safety or welfare of the public or any person.
(3) If a qualified applicant does not seek or the court does not issue a certificate before or at the time of sentencing, a qualified applicant who subsequently seeks relief shall proceed under subsection b. of this section.
b. (1) A supervising authority may [issue] consider an application for a certificate [in regard to a qualified offender who is, or had previously been, under supervision by the supervising authority] if the supervising authority determines that:
(a) [the applicant is convicted of a second, third or fourth degree offense and is eligible for relief under subsection c. of this section] the qualified applicant has been sentenced to a term of supervision by the supervising authority;
(b) the applicant has not been convicted of a crime since the date of the conviction [for which he is under] that resulted in the most recent term of supervision, has no pending criminal charge, and there is no information presented that such a charge is imminent;
(c) issuing the certificate will not pose [a substantial] an unreasonable risk to public safety; and
(d) issuing the certificate will assist in the successful reintegration of the [offender] applicant and is consistent with the public interest.
(2) [A certificate issued pursuant to this subsection may suspend disabilities, forfeitures and bars generally within the limits of this act, or only certain disabilities, forfeitures and bars, specifically named in the certificate document] The supervising authority may issue the certificate if, after reviewing the application, the applicant's criminal history, any statement presented by a victim or a prosecutor, and any other relevant evidence, it finds that:
(a) granting the certificate will materially assist the applicant in obtaining or maintaining employment;
(b) granting the certificate will aid the applicant in living a law-abiding life and is in the public interest; and
(c) granting the certificate would not pose an unreasonable risk to the safety or welfare of the public or any person.
(3) The supervising authority shall publish a standard application form on its website to aid persons in seeking a certificate of suitability for employment under this section and shall inform persons under its supervision of the purpose and availability of the certificate. In addition to information regarding the person's identity and criminal history, the application form shall include:
(a) a description of the relevant disabilities, forfeitures, bars or sanctions from which the person is seeking relief and a summary of the reasons the person believes that relief is needed;
(b) a summary of the person's employment history, specifying the name of each employer, dates of employment with each employer, and the position held;
(c) verifiable references and endorsements;
(d) the name of one or more immediate family members of the person, or other persons with whom the person has a close relationship, who support the person's reentry plan;
(e) the name and address of prospective employers to which the certificate would apply;
(f) an explanation of the reason the person believes that relief from the collateral sanction or sanctions should be granted;
(g) other information that would aid the supervising authority in considering the application.
(4) At the request of a qualified applicant who is serving a term of probation, an application for a certificate of suitability for employment also may serve as an application seeking the court's consideration to restore the right to operate a motor vehicle over the highways of this State where the right was suspended as a collateral sanction for a conviction for a crime if the applicant has a bona fide employment opportunity that requires a valid driver's license to perform the duties of the position or to commute to the site of the employment and no other reasonable form of transportation is available. Where an applicant seeks restoration of driving privileges under this section, the applicant shall serve a copy of the application on the county prosecutor of the county where the conviction was issued pursuant to the Rules of Court. After considering the application, the court may order full or limited restoration of the person's driving privileges. It shall be presumed that a person who qualifies for restoration of driving privileges under this section also is eligible for an exception to forfeiture of driving privileges under the "compelling circumstances" standard specified in N.J.S.2C:35-16.
c. [A qualified offender is eligible for relief under subsection b. of this section if the offender has not been convicted of:
(1) a first degree crime;
(2) an offense to which section 2 of P.L.1997, c.117 (C.2C:43-7.2) applies;
(3) a second degree offense defined in chapters 13, 14, 15, 16, 24, 27, 30, 33, 38 of Title 2C of the New Jersey Statutes;
(4) a violation of subsection a. of N.J.S.2C:24-4 or paragraph (4) of subsection b. of N.J.S.2C:24-4;
(5) a crime requiring registration pursuant to section 2 of P.L.1994, c.133 (C.2C:7-2);
(6) a crime committed against a public entity or against a public officer;
(7) a crime enumerated in subsection b. of section 2 of P.L.2007, c.49 (C.43:1-3.1) committed by a public employee, which involves or touches upon the employee's office, position or employment, such that the crime was related directly to the person's performance in, or circumstances flowing from, the specific public office or employment held by the person;
(8) any crime committed against a person 16 years of age or younger, or a disabled or handicapped person; or
(9) a conspiracy or attempt to commit any of the crimes described in this subsection] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).
d. [(1) A supervising authority may issue a certificate in regard to a qualified offender, when three years have passed since the applicant has completed the incarcerative or supervisory portion of his sentence, whichever is later, and the supervising authority finds that:
(a) the applicant is eligible for such relief as defined in subsection e. of this section;
(b) issuing the certificate does not pose a substantial risk to public safety; and
(c) issuing the certificate will assist in the successful reintegration of the offender and is consistent with the public interest.
(2) The certificate issued pursuant to this subsection may suspend disabilities, forfeitures and bars generally within the limits of this act, or only certain disabilities, forfeitures and bars specifically named in the certificate document] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).
e. [A qualified offender is eligible for relief under subsection d. of this section if he has remained without criminal involvement since his conviction, including that he has not subsequently been convicted of a crime, has no pending charges for any crime, and there is no information presented that such a charge is imminent; and is applying for relief from a conviction other than:
(1) a first degree crime;
(2) any of the offenses to which section 2 of P.L.1997, c.117 (C.2C:43-7.2) applies;
(3) a violation of subsection a. of N.J.S.2C:24-4 or paragraph (4) of subsection b. of N.J.S.2C:24-4;
(4) a crime requiring registration pursuant to section 2 of P.L.1994, c.133 (C.2C:7-2);
(5) a crime enumerated in subsection b. of section 2 of P.L.2007, c.49 (C.43:1-3.1) committed by a public employee, which involves or touches upon the employee's office, position or employment, such that the crime was related directly to the person's performance in, or circumstances flowing from, the specific public office or employment held by the person;
(6) a crime committed against a person 16 years of age or younger, or a disabled or handicapped person; or
(7) a conspiracy or attempt to commit any offense described in this paragraph] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).
f. For the purposes of this section, "other relevant evidence" may include:
(1) the nature and
seriousness of the crime;
(2) the circumstances under which the crime occurred;
(3) the amount of time that has elapsed since the crime was
committed;
(4) the age of the person when the crime was committed;
(5) whether the crime was an isolated or repeated incident;
(6) any social conditions which may have contributed to the
commission of the crime;
(7) any health-related conditions, including mental health and drug or alcohol addiction, which may have contributed to the commission of crime and the person's progress toward mitigating those conditions; and
(8) any evidence of rehabilitation, including good conduct while incarcerated, under the charge of the supervising authority, or living in the community; employment history, successful participation in professional counseling or treatment; acquisition of additional academic or vocational education, successful participation in work-release or job training programs, the evaluation or recommendation of persons who have or have had the applicant under their employ or supervision; and verifiable references and endorsements of persons who regularly interact with the applicant in the community.
(cf: P.L.2007, c.327, s.2)
10. Section 3 of P.L.2007, c.327 (C.2A:168A-9) is amended to read as follows:
3. A certificate issued pursuant to [this act] the provisions of P.L.2007, c.327 (C.2A:168A-7 et seq.) shall be presumptive evidence of the subject's rehabilitation when considered in regard to [public] employment [as defined in this act], or in conjunction with [any] occupational licensing, or certification process to which this act applies, which in any particular case may or may not be overcome by other evidence or information. The certificate may remove certain collateral sanctions, mitigate risks associated with hiring, or provide evidence of a person's suitability for employment, but creates no legal duty or obligation on any employer to hire the subject of the certificate after considering the person's qualifications and fitness for a particular position. A certificate granted under [this act] section 2 of P.L.2007, c.327 (C.2A:168A-8) shall not prevent any [judicial, administrative, licensing or other body, board, authority] employer or public official from relying on grounds other than the fact of the criminal conviction, which may include the relationship between the nature or elements of the offense underlying the conviction and the nature of the employment or license, in exercising any discretionary authority, if any, to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or privilege or to determine eligibility or suitability for employment.
(cf: P.L.2007, c.327, s.3)
11. Section 4 of P.L.2007, c.327 (C.2A:168A-10) is amended to read as follows:
4. In all cases, the applicant or the supervising authority shall provide notice to the prosecutor of either the issuance of a certificate or the [pendency] filing of an application for a certificate, or both, pursuant to procedures that shall be developed [and published] by the supervising authority [within thirty days of the effective date of this act].
(cf: P.L.2007, c.327, s.4)
12. (New section) A supervising authority shall develop and maintain an Internet central registry or other appropriate means to promote public access to information related to the issuance and validity of certificates of suitability for employment.
13. Section 5 of P.L.2007, c.327 (C.2A:168A-11) is amended to read as follows:
5. a. [A certificate granted pursuant to this act shall no longer be valid if the person who is the subject of the certificate is indicted for a first or second degree crime or convicted of a crime] A certificate of suitability for employment issued pursuant to section 2 of P.L.2007, c.327 (C.2A:168A-8) shall be presumptively revoked by operation of law and all sanctions imposed by law or by order of the court shall be restored if the person to whom the certificate was issued is subsequently convicted of a crime.
b. [Upon presentation of satisfactory proof that the criminal charges or indictment have been dismissed, or of an acquittal after trial, a certificate revoked under the circumstances described in subsection a. of this section may be reinstated by the issuing entity] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).
c. [A] After providing the subject of the certificate with due process of law, a certificate may be revoked at any time upon application of the prosecutor or on the supervising authority's own initiative when information is received that circumstances have materially changed such that the relief would not be authorized under this act or is no longer in the public interest. The supervising authority [revoking such a certificate] shall [notify] provide the subject of the certificate [of] with notice and an opportunity to contest the revocation.
d. In addition to any other offense that may apply, a person who knowingly uses or attempts to use a revoked certificate, or a certificate that is no longer valid, in order to obtain a benefit or avoid a disqualification shall be guilty of a disorderly persons offense. For the purposes of this subsection, "uses or attempts to use," shall include knowing failure to disclose to an employer or other affected public entity the revocation or invalidity of a certificate.
e. Where the supervising authority is aware of a public entity or employer who relied on the certificate when issuing an occupational license to or hiring a qualified applicant, the supervising authority shall attempt to notify the public entity or employer of the revocation or may make this information available through the Internet central registry or other appropriate means established pursuant to section 10 of P.L. c. (pending before the Legislature as this bill).
(cf: P.L.2007, c.327, s.5)
14. Section 6 of P.L.2007, c.327 (C.2A:168A-12) is amended to read as follows:
6. [This act shall not apply to private employers.] A private employer may, in its sole and complete discretion, consider a certificate issued under this statute in making employment decisions. [Nothing] Except for the statutory immunity for negligent hiring under certain circumstances conferred pursuant to paragraph (2) of subsection b. of section 1 of P.L.2007, c.327 (C.2A:168A-7), nothing in this section shall be construed to create or alter any right, privilege, or duty [or to change any right, privilege, or duty] existing under law.
(cf: P.L.2007, c.327, s.6)
15. (New section) The Department of Labor and Workforce Development shall initiate a public awareness campaign to make employers in this State aware of opportunities and benefits that are available for hiring persons who were formerly convicted of a crime who have served their sentence in order to demonstrate their employment value and integrity. The campaign shall include information regarding employment opportunities and incentives available through the Federal Bonding Program, which encourages employment opportunities by mitigating potential economic risks that may be associated with hiring formerly convicted persons; the Federal Work Opportunity Tax Credit, which offers employers federal tax credits for hiring formerly convicted persons; and other federal or State programs that encourage the hiring of formerly convicted persons.
16. (New section) Nothing contained in P.L. , c. (pending before the Legislature as this bill) shall be construed to alter or limit, or affect the manner of applying for, a pardon to the Governor or an expungement to the Superior Court. A certificate of suitability for employment issued pursuant to P.L. , c. (pending before the Legislature as this bill) shall not be deemed to afford the full rights or privileges of a pardon or expungement.
17. This act shall take effect on the first day of the seventh month next following enactment.
STATEMENT
This bill assists convicted offenders in obtaining employment by allowing them to petition the court for relief from collateral sanctions, establishing a certificate of suitability for employment, and requiring public employers to justify adverse hiring decisions.
Under the bill, certain convicted offenders are authorized to petition the court for an order of limited relief from collateral sanctions. A qualified applicant may do so at sentencing or when they have completed a sentence. The bill defines a collateral sanction as a penalty, restriction, disability, forfeiture, bar, or disadvantage, however denominated, related to employment or occupational licensing imposed on a person pursuant to State law that applies by operation of law as a consequence of the person's conviction for a crime or offense. Examples of collateral sanctions include denial of a government issued license or permit, such as a driver's license or employment-related license. Collateral sanctions often make it more difficult for convicted offenders to successfully reintegrate into society upon release.
The bill sets forth the information the offender is required to include in the petition for relief from a collateral sanction and the criteria the court is to consider in granting this relief. The order is to include the extent of the relief granted. Even if an offender has been granted relief from a collateral sanction, the bill authorizes employers to deny the employment, benefit or opportunity if the employer determines after an individualized assessment of the offender and the circumstances of the crime that the elements and conduct of the crime are substantially related to the employment, benefit or opportunity and employing the offender may present a risk to the safety of a person or the public. The court is authorized to issue a new order to expand relief or to revoke an order if an offender is subsequently convicted of a crime or violates a condition of the sentence.
The bill also establishes a certificate of suitability for employment. P.L.2007, c.327 established a certificate that would relieve disabilities, forfeitures, and bars related to obtaining public employment, professional licenses, and admission to examinations for licensure or certification. Very few of these certificates have been issued to date. The bill broadens the scope of this newly entitled "certificate of suitability for employment" to also provide public and private employers with civil immunity when hiring a convicted offender.
Specifically, the bill authorizes a certificate of suitability for employment to be introduced in a judicial or administrative hearing as evidence of an employer's due care in hiring, retaining, licensing, leasing to, admitting to a school or program an offender if the employer knew the offender held the certificate at the time of the alleged negligence or other fault. The bill also specifies that a certificate is to provide immunity for the employer with respect to a claim for negligent hiring if the employer knew the offender held a certificate at the time of the alleged negligence. An employer who hires an offender holding a certificate could only be held liable under the bill if: the offender subsequently demonstrates danger or is convicted of a crime; the offender is retained after demonstrating danger or being convicted; the plaintiff proves by a preponderance of the evidence that the employer had actual knowledge that the offender was dangerous or had been convicted of the crime; and the employer, after having actual knowledge of the danger or conviction, was willful in retaining the offender as an employee.
Under the bill, the court is responsible for issuing certificates of suitability for employment to qualified applicants who are not sentenced to a term of imprisonment; the supervising authority is responsible for issuing certificates to qualified offenders who are serving or have completed a term of supervision. The supervising authority is the Probation Division in the case of an applicant who has been or is on probation and is the State Parole Board if the applicant has been or is on parole. The bill directs the court or supervising authority to review the application, the applicant's criminal history, statements by the victim or prosecutor, and other relevant evidence. Relevant evidence includes: the nature and seriousness of the crime; the circumstances under which the crime occurred; the amount of time that has elapsed since the crime was committed; the age of the person when the crime was committed; whether the crime was an isolated or repeated incident; any social conditions which may have contributed to the commission of the crime; any health-related conditions, including mental health and drug or alcohol addiction, which may have contributed to the commission of crime and the person's progress toward mitigating those conditions; and any evidence of rehabilitation. The certificate is to be issued if it will materially assist the applicant in obtaining or maintaining employment, aid the applicant in living a law-abiding life, is in the public interest, and does not pose an unreasonable risk to the safety or welfare of the public or any person.
The supervising authority is responsible for publishing on its official website a standardized form for applying for a certificate of suitability for employment. The application also can be used to apply to the court for restoration of driving privileges when a convicted offender's driver's license was suspended as a collateral sanction for committing a crime. The supervising authority also is required to develop and maintain an Internet central registry to promote public access to information related to the issuance and validity of these certificates.
The bill provides that a certificate of suitability for employment is presumptively revoked by operation of law and all sanctions imposed by law or order of the court are restored if the person to whom the certificate was issued is subsequently convicted of a crime. A supervising authority is to attempt to notify an employer when it becomes aware that a certificate has been revoked and may indicate this on the Internet central registry.
The bill further requires the Department of Labor and Workforce Development to initiate a public awareness campaign to apprise this State's employers of the opportunities and benefits of hiring convicted offenders who have served their sentence.
The bill also amends and clarifies current law prohibiting a licensing authority from discriminating against a convicted offender in granting a license or certification, or entry to an exam for a license or certification, on the grounds that the applicant was convicted of a crime or disorderly persons offense. The bill replaces the term licensing authority with the term "public entity" which is defined under current law as a State, county or municipal department, board, officer or agency. Exceptions to this prohibition on discrimination under current law include applicants convicted of a broad range of crimes enumerated in the law governing permanent forfeiture of public office and the law governing licensure of mortgage loan originators or if the conviction relates adversely to the occupation, trade, vocation, profession or business. Exceptions under the bill are when the applicant: (1) is permanently disqualified from holding public office; (2) is disqualified from obtaining a license under the New Jersey Residential Mortgage Lending Act; or (3) has been convicted of a crime of the first degree; second degree criminal homicide, second degree assault, second degree kidnapping, a second degree sex offense, and certain other second degree crimes against the family, children and incompetents; terrorism; a crime requiring registration as a sex offender; or a conspiracy or attempt to commit any of these crimes. Additionally, the bill expands the law prohibiting discrimination not only to licensing and certification but also to public employment.
Under the bill, when a public entity makes an adverse decision against an applicant for a license, certification, or public employment the entity is required to explain in writing how certain enumerated factors relate to the applicant's lack of fitness or ability to perform the duties and responsibilities of the occupation, trade, vocation, profession, or business, or would create a risk to public welfare or safety. An aggrieved applicant is authorized by the bill to appeal an adverse decision to the Civil Service Commission or other State or local government agency with statutory or regulatory oversight over the public entity.
