Criminal History Archives - EMPLOYEE BENEFITS BLOG

Massachusetts Agency Releases Guidance On How It Interprets “Ban the Box” Legislation; Guidance Appears to Expand the Legislation in Two Key Ways

This is an update to the recent blog post discussing the new criminal offender record information legislation and its impact on hiring in Massachusetts. The Massachusetts Commission Against Discrimination (MCAD), has now issued a fact sheet to explain how it interprets the "ban the box" provisions of the new law. While the fact sheet is not formal regulation and it does not carry the force of law, it is important guidance for any employer hiring in Massachusetts. This is because the MCAD is the agency that investigates alleged violations of the law and that can assess damages against an employer where the MCAD determines – based on its own interpretation of the law – that the employer has violated the “ban the box” requirements.

The fact sheet appears to expand the new legislation in two key ways. First, the MCAD interprets the phrase “initial written job application” to mean any written communication with applicants before the interview. A plain reading of the statute’s reference to the “initial written application form,” would seem to allow employers to ask applicants about criminal history at any time other than on the application. Despite this, the fact sheet explains that the MCAD “will presume that a written application or form requesting criminal background information prior to an interview is part of the ‘initial written application.’” (emphasis added).

Second, the MCAD seems to interpret the law as covering applications received by candidates in Massachusetts even where the position for which they are applying is located elsewhere. The fact sheet does permit multi-state employers subject to this legislation to use standard application forms with questions about criminal history, but only if the forms contain “explicit instructions” that Massachusetts applicants should not respond and that pre-interview inquiries about criminal history are not permitted under Massachusetts law. The fact sheet explains that “the employer’s disclaimer must be clear and unambiguous, in boldface type and placed and printed to attract the reader’s attention.”

A court may ultimately decide that the MCAD has overstepped its bounds with its interpretation, but until that happens, employers who are hiring in Massachusetts and who want to avoid an enforcement action by the MCAD should review the fact sheet and conform their hiring procedures.

For more information on the new fact sheet, click here.

Hiring in Massachusetts? Criminal History Questions Must Be Removed from Job Applications by November 4, 2010

by Heather Egan Sussman and Sabrina Dunlap

The Massachusetts Governor recently signed into law an act reforming the Commonwealth’s criminal offender record information system. Under this new law, most Massachusetts employers will now be prohibited from asking about criminal history on an initial written job application. Massachusetts is among a growing number of states to "ban the box" on job applications.

The most significant provisions directly affecting Massachusetts employers are as follows:

The ban-the-box provision is effective November 4, 2010. As of that date, employers are prohibited from asking job applicants about criminal history on the initial written job application with only limited exceptions.
The law creates new “notice” requirements for employers effective February 6, 2012. Under these new requirements, an employer in possession of criminal record information about an applicant must provide the information to the applicant prior to questioning the applicant about it. In addition, similar to the requirements of the federal Fair Credit Reporting Act, if an employer decides not to hire an applicant in whole or in part because of the applicant’s criminal record, the employer must provide the applicant with a copy of the record.
The “policy” provision of the new law is also effective February 6, 2012. This provision requires employers that conduct five or more criminal background investigations in a year to implement and maintain a written criminal record information policy.
The law imposes penalties (including imprisonment for up to one year or a fine of up to $5,000 for an individual, $50,000 for an entity) for those who request or require a person to provide a copy of his or her criminal record except in situations authorized by law. In addition, the law prohibits harassment of the subject of a criminal record, punishable by imprisonment of up to one year, or a fine of not more than $5,000.

Employers that plan to hire in Massachusetts should reexamine application forms and employment policies to ensure compliance with the new law.

For more information and analysis on the new law, click here.