S4049

An Act concerning certain employees of public institutions of higher education and supplementing chapter 62 of Title 18A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. A public institution of higher education shall not employ for pay or contract for the paid services of any person serving in a position which involves regular contact with students unless the institution:

a. Requires the applicant to provide:

(1) A list, including name, address, telephone number and other relevant contact information of the applicant's:

(a) current employer; and

(b) all former employers within the last 10 years that were institutions of higher education; and

(2) A written authorization that consents to and authorizes disclosure of the information requested under subsection b. of this section and the release of related records by the applicant's employers listed under paragraph (1) of this subsection, and that releases those employers from liability that may arise from the disclosure or release of records;

(3) A written statement as to whether the applicant:

(a) has been, or is currently, the subject of any sexual harassment or sexual assault investigation by any employer, State licensing agency, or law enforcement agency, unless the investigation resulted in a finding that the allegations were false or the alleged incident was not substantiated; or

(b) has ever been disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of sexual harassment or sexual assault were pending or under investigation, or due to an adjudication or finding of sexual harassment or sexual assault.

b. Conducts a review of the employment history of the applicant by contacting those employers listed by the applicant under the provisions of paragraph (1) of subsection a. of this section and requesting the following information:

(1) The dates of employment of the applicant; and

(2) A statement as to whether the applicant:

(a) was, or is currently, the subject of any sexual harassment or sexual assault investigation by any employer, State licensing agency, or law enforcement agency, unless the investigation resulted in a finding that the allegations were false or the alleged incident was not substantiated; or

(b) was disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of sexual harassment or sexual assault were pending or under investigation, or due to an adjudication or finding of sexual harassment or sexual assault.

The review of the employment history may be conducted through telephonic, electronic, or written communications. If the review is conducted by telephone, the results of the review shall be documented in writing by the prospective employer.

2. a. An applicant who willfully provides false information or willfully fails to disclose information required in subsection a. of section 1 of this act:

(1) shall be subject to discipline up to, and including, termination or denial of employment;

(2) may be deemed in violation of subsection a. of N.J.S.2C:28-3; and

(3) may be subject to a civil penalty of not more than $500 which shall be collected in proceedings in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).

b. A public institution of higher education shall include a notification of the penalties set forth in this section on all applications for employment for positions which involve regular contact with students.

3. a. No later than 20 days after receiving a request for information under subsection b. of section 1 of this act, an employer that has or had an employment relationship within the last 10 years with the applicant shall disclose the information requested.

b. The prospective employer, in conducting the review of the employment history of an applicant whose current or former employers are out-of-State, shall make, and document with specificity, diligent efforts to:

(1) verify the information provided by the applicant pursuant to subsection a. of section 1 of this act; and

(2) obtain from any out-of-State employers listed by the applicant the information requested pursuant to subsection b. of section 1 of this act.

c. The failure of an employer to provide the information requested pursuant to subsection b. of section 1 of this act within the 20-day timeframe established under subsection a. of this section may be grounds for the automatic disqualification of an applicant from employment with the public institution of higher education.

d. An institution shall not be liable for any claims brought by an applicant who is not offered employment or whose employment is terminated:

(1) because of any information received by the institution from an employer pursuant to section 1 of this act; or

(2) due to the inability of the institution to conduct a full review of the applicant's employment history pursuant to subsection b. of section 1 of this act.

e. A public institution of higher education shall have the right to immediately terminate an individual's employment or rescind an offer of employment if:

(1) the applicant is offered employment or commences employment with the institution following the effective date of this act; and

(2) information regarding the applicant's history of sexual harassment or sexual assault is subsequently discovered or obtained by the employer that the employer determines disqualifies the applicant or employee from employment with the institution.

The termination of employment pursuant to this subsection shall not be subject to any grievance or appeals procedures or tenure proceedings pursuant to any collectively bargained or negotiated agreement or any law, rule, or regulation.

4. a. After reviewing the information disclosed under subsection b. of section 1 of this act and finding an affirmative response to any of the inquiries in paragraph (2) of subsection b. of section 1 of this act or if there was an affirmative response to any of the inquiries in paragraph (3) of subsection a. of section 1 of this act, the prospective employer, prior to determining to continue with the applicant's job application process, shall make further inquiries of the applicant's current or former employer to ascertain additional details regarding the matter disclosed.

b. A public institution of higher education may employ or contract with an applicant on a provisional basis for a period not to exceed 90 days pending review by the institution of information received pursuant to section 1 of this act, provided that all of the following conditions are satisfied:

(1) the applicant has complied with subsection a. of section 1 of this act;

(2) the institution has no knowledge or information pertaining to the applicant that the applicant is required to disclose pursuant to paragraph (3) of subsection a. of section 1 of this act; and

(3) the institution determines that special or emergent circumstances exist that justify the temporary employment of the applicant.

5. a. Information received by an employer under this act shall not be deemed a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or the common law concerning access to public records.

b. An employer, a public institution of higher education, or an administrator at a public institution of higher education who provides information or records about a current or former employee or applicant shall be immune from criminal and civil liability for the disclosure of the information, unless the information or records provided were knowingly false. The immunity shall be in addition to and not in limitation of any other immunity provided by law.

6. a. On or after the effective date of this act, a public institution of higher education may not enter into a collectively bargained or negotiated agreement, an employment contract, an agreement for resignation or termination, a severance agreement, or any other contract or agreement or take any action that:

(1) has the effect of suppressing or destroying information relating to an investigation related to a report of suspected sexual harassment or sexual assault by a current or former employee;

(2) affects the ability of the institution to report suspected sexual harassment or sexual assault to the appropriate authorities; or

(3) requires the institution to expunge information about allegations or finding of suspected sexual harassment or sexual assault from any documents maintained by the institution, unless after investigation the allegations are found to be false or the alleged incident of sexual harassment or sexual assault has not been substantiated.

b. Any provision of an employment contract or agreement for resignation or termination or a severance agreement that is executed, amended, or entered into after the effective date of this act and that is contrary to this section shall be void and unenforceable.

7. The Secretary of Higher Education shall establish a public awareness campaign to publicize the provisions of this act and to ensure applicants and employers are aware of their respective rights and responsibilities under this act.

8. This act shall take effect on the first day of the second month following enactment, but the Secretary of Higher Education may take any anticipatory administrative action in advance as may be necessary for the implementation of this act.

STATEMENT

This bill prohibits a public institution of higher education from employing a person serving in a position which involves regular contact with students unless the institution conducts a review of the employment history of the applicant by contacting former and current employers and requesting information regarding sexual harassment and sexual assault allegations. The applicant will only be required to list employers from the prior ten years that were institutions of higher education. The public institution of higher education must ask those employers for a statement as to whether the applicant:

· Was, or is currently, the subject of any sexual harassment or sexual assault investigation by any employer, State licensing agency, or law enforcement agency; or

· was disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of sexual harassment or sexual assault were pending or under investigation, or due to an adjudication or finding of sexual harassment or sexual assault.

The applicant must also provide his own written statement disclosing any of the same matters.

The applicant must provide a written authorization that consents to and authorizes disclosure of the information requested by the prospective employer and releases the applicant’s former and current employers from any liability arising from the disclosure.

On or after the effective date of this bill, a public institution of higher education may not enter into a collectively bargained or negotiated agreement, an employment contract, an agreement for resignation or termination, a severance agreement, or any other contract or agreement or take any action that:

· has the effect of suppressing or destroying information relating to an investigation related to a report of suspected sexual harassment or sexual assault by a current or former employee;

· affects the ability of the institution to report suspected sexual harassment or sexual assault to the appropriate authorities; or

· requires the institution to expunge information about allegations or findings of suspected sexual harassment or sexual assault from any documents maintained by the institution, unless after investigation the allegations are found to be false or the alleged incident of sexual harassment or sexual assault has not been substantiated.

An applicant who gives false information or willfully fails to disclose information required to be provided under the bill will be subject to discipline, including termination or denial of employment. The applicant also may be deemed in violation of subsection a. of N.J.S.2C:28-3, and may be subject to certain civil penalties. The prospective employer is required to provide notification of these possible penalties to prospective employees in the employment application.