On August 6, 2010, Massachusetts Governor Deval Patrick signed into law a bill reforming the state’s criminal record system. Certain of those reforms went into effect on November 4, 2010, including changes to what information employers are permitted to seek from a job applicant during the application process regarding the applicant’s criminal record. Under the new law, employers doing business in Massachusetts are prohibited from seeking disclosure of a job applicant’s criminal record information on an “initial written application form.”
The Massachusetts Commission Against Discrimination (“MCAD”) recently issued guidelines for employers regarding the implementation of the reforms, which are codified at Mass. Gen. L. ch. 151B §4(9½).1 In explaining the changes, the MCAD states that “Consistent with the legislative intent behind CORI Reform, [it] will presume that a written application or form requesting criminal background information prior to an interview is part of the ‘initial written application.’”
The prohibition against seeking information about an applicant’s criminal record in the initial written application is subject to two limited exceptions, explained in the MCAD guidelines: (1) if the applicant is applying for a position where federal or state law or regulation disqualifies an applicant with a criminal conviction from employment in the position sought, such as when a regulation specifically prohibits an employer from hiring an employee convicted of a felony; or (2) if a statute or regulation prohibits employers from employing persons with certain criminal convictions, such as a bank which is required by federal law to inquire whether an applicant has been convicted of a crime involving dishonesty, breach of trust, or money laundering (12 U.S.C. §1829). Absent these two narrow circumstances, all employers who employ six or more persons, including temporary employment agencies, are subject to the new law and are required to refrain from seeking information about a job applicant’s criminal history prior to the interview stage of the hiring process.
According to the MCAD, however, national and international employers may continue to use standard written application forms which seek disclosure of criminal history in Massachusetts, so long as the form contains an explicit disclaimer for Massachusetts applicants. The MCAD suggests the following disclaimer be added to any such standard form:
MASSACHUSETTS APPLICANTS ONLY:
Under Massachusetts law, an employer is prohibited from making written, pre-employment inquiries of an applicant about his or her criminal history. MASSACHUSETTS APPLICANTS SHOULD NOT RESPOND TO ANY OF THE QUESTIONS SEEKING CRIMINAL RECORD INFORMATION.
During the interview stage of the application process, subject to the exceptions in Mass. Gen. L. ch. 151B §4(9),2 to which there has been no change, employers may inquire orally regarding an applicant’s criminal history.
For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:
Boston
John Adkins, john.adkins@bingham.com, 617.951.8551
Jenny Cooper, jenny.cooper@bingham.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, lou.rodriques@bingham.com, 617.951.8340
Los Angeles/Orange County
Jacqueline Cookerly Aguilera, jackie.aguilera@bingham.com, 213.229.8439
Debra Fischer, debra.fischer@bingham.com, 213.680.6418
San Francisco
James Severson, james.severson@bingham.com, 415.393.2242
New York
Douglas Schwarz, douglas.schwarz@bingham.com, 212.705.7437
Tokyo
Mie Fujimoto, mie.fujimoto@bingham.com, 81.3.6721.3138
1 The MCAD’s guidelines can be found at http://www.mass.gov/mcad/
2 Mass. Gen. L. ch. 151B §4(9) makes it illegal for an employer to inquire at any time during the application process regarding: “(i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information.
This article was originally published by Bingham McCutchen LLP.