March 6, 2023

New Jersey’s attorney general and the Division on Civil Rights (DCR) have announced that they issued 59 Notices of Violations. These violations went to housing providers across New Jersey for alleged violations of the state’s Fair Chance in Housing Act (FCHA). The violations pertain to banned questions about criminal history appearing on housing applications. It also includes posting housing advertisements or policies that do not comply with the FCHA.

The FCHA took effect on January 1, 2022. It bans housing providers from inquiring about an applicant’s criminal history on applications or interviews before conditional offers for housing. Additionally, the law prohibits housing providers from advertising, publishing, or posting that they will not consider housing applications from people with criminal records.

The issued notices revealed that the DCR knew that the housing providers asked discriminatory questions on housing applications. It also showed the DCR’s awareness of illegal statements of eligibility criteria in advertising materials for housing. As a result of these notices, the housing providers could receive civil penalties of up to $1,000 for a first offense, up to $5,000 for a second offense, and up to $10,000 beyond the second.

Every Notice of Violation also includes information packets explaining the FCHA and the housing providers’ obligations under the law. In addition, the information packets inform the housing providers that they cannot ask about the following before or after a conditional offer:

• Arrests or charges that have not resulted in a criminal conviction;
• Expunged convictions;
• Convictions erased through an executive pardon;
• Vacated and otherwise legally nullified convictions;
• Juvenile adjudications of delinquency; and
• Sealed records.

Generally, housing providers may inquire about an applicant’s criminal history after making a conditional housing offer. However, these providers cannot deny an individual housing due solely to their criminal record. In addition, they can only consider the following types of criminal records:

• “A conviction for murder, aggravated sexual assault, kidnapping, arson, human trafficking, sexual assault, endangering the welfare of a child in violation of N.J.S.2C:24-4(b)(3);
• A conviction for any crime that requires lifetime sex offender registration in the state;
• Any conviction for a 1st-degree indictable offense or release from prison for that offense within the past six years;
• Any conviction for a 2nd- or 3rd-degree indictable offense, or release from prison for that offense, within the past four years; and
• Any conviction for a 4th-degree indictable offense, or release from prison for that offense, within the past one year.”

Furthermore, a housing provider can only withdraw conditional offers after considering certain individualized factors. These include:

• “Nature and severity of the offense(s);
• Applicant’s age at the time of the offense(s);
• How recently the offense(s) occurred;
• Any information the applicant provided in their favor since the offense(s);
• If the offense(s) happened again in the future, whether that would impact the safety of other tenants or property; and
• Whether the offense(s) happened on or connected to property that the applicant rented or leased.”

With the DCR enforcing the FCHA, housing providers must follow the FCHA. The easiest way to do that is by partnering with a trustworthy background check company. The right provider will ensure you stay up-to-date with all the regulations in your area and help you comply with them.

Pre-employ makes background checks easy and reliable. Speak with a compliance expert today.

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