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Massachusetts Commission Against Discrimination on New Criminal Background Check Law

  • December 9, 2010

Massachusetts’ new law on criminal offender record information (“CORI”) bans the use of questions about criminal history on an “initial written application” for employment.  This ban became effective November 4, 2010.  The Massachusetts Commission Against Discrimination (MCAD), charged with enforcement, has issued a Fact Sheet on how it intends to enforce the law.  While the Fact Sheet does not have the force of a regulation or law, it provides valuable guidance for employers.

For more information about the CORI law, see our article, New Massachusetts Law on Criminal Background Checks

MCAD on When to Seek Criminal History Information

The CORI law provides that it is unlawful for an employer to request criminal history information on an “initial written” employment application.  The MCAD interprets that broadly.  It instructs that any written form or application requesting an applicant’s criminal history prior to an interview falls under this prohibition.  Prior to the MCAD’s guidance, employers interpreted the CORI law to permit them to ask applicants about criminal history on documents other than the initial written application.  The MCAD appears to suggest in the Fact Sheet that employers may request criminal history information from an applicant only after the interview commences.  

The MCAD Fact Sheet confirms that the law only applies to written criminal history inquiries; therefore, employer may make oral inquiries of an applicant about criminal history during an interview.

Employment Applications for Multiple States

For employers with operations in Massachusetts and at least one other state, the good news is that there is no need to have a separate employment application for Massachusetts.  The MCAD Fact Sheet instructs that employers using multi-state applications should include a clear disclaimer stating that the employer is prohibited from obtaining criminal history information and an instruction that the applicant is not to answer any questions on the application seeking criminal history information.  Such instructions must be “clear and unambiguous, in boldface type and placed and printed to attract the reader’s attention.”  

The Fact Sheet provides a sample notice that seems broader than what the law requires and even broader than the MCAD’s guidance.  The sample says, “Under Massachusetts law, an employer is prohibited from making written, pre-employment inquiries of an applicant about his or her criminal history.”  It purports to prohibit “written, pre-employment inquiries of an applicant” at any point, while the law addresses only “initial written applications.”  The sample notice also seems to contradict the MCAD’s guidance, which implicitly allows written pre-employment inquiries (such as during the interview), as long as they are not made prior to an interview.

The Fact Sheet confirms that an employer that “does business in Massachusetts” and “takes applications in Massachusetts” must comply with the new legislation – even if the applicant is not from Massachusetts.  The MCAD will consider other scenarios on a “case by case” basis (such as if a Massachusetts resident applies to an out-of-state employer).

MCAD’s Interpretation of the Exceptions

The Fact Sheet instructs that the statutory exceptions to the new legislation will be narrowly interpreted.  These are for positions for which any federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses, or where an employer is required by state or federal law regulation to not employ persons who have been convicted of certain offenses.  Even if an employer can demonstrate that an exception applies, any inquiry is limited to the particular crimes that would result in mandatory or presumptive disqualification.

Implications for Employers

Most employers must discontinue making written inquiries about an applicant’s criminal history on initial employment applications.  If employers wish to make such inquiries later, careful consideration must be given to the restrictions and interpretations in the Fact Sheet.   While it is unclear whether and how a court would interpret the Fact Sheet, given the inconsistencies between the Fact Sheet and the law, the Fact Sheet is instructive of the enforcement position the MCAD will take.  Thus, a careful review and design of hiring procedures, including the method and timing of a criminal history inquiry, may help to avoid costly legal proceedings while ensuring that, consistent with their business needs, employers can screen applicants prior to hire.

Jackson Lewis attorneys are available to answer questions about the new legislation and Fact Sheet and to assist in designing a procedure for seeking criminal history information.

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