On August 6, 2010, Governor Deval Patrick signed into law a bill reforming the state’s criminal record system, including changes in how employers may seek criminal record information1 about job applicants.
Effective November 4, 2010: It will be illegal for employers to ask for criminal record information on an “initial” written application form unless the applicant is applying for a position for which any federal or state law or regulation either (i) disqualifies, or (ii) prohibits employers or affiliates from employing, persons convicted of specified offenses. Other than for these two exceptions, effective November 4 of this year, employers should delete criminal record inquiries from their job application forms used in Massachusetts. Inquiries authorized by state or federal law should be limited to the offenses specified in the law and must still comply with the criminal record inquiry rules already in effect in Massachusetts.
Effective May 4, 2012:
a. The requestor must certify under the penalties of perjury that (i) it has obtained a signed acknowledgement form from the subject authorizing the employer to obtain the subject’s criminal record information, (ii) the request is for an authorized purpose, and (iii) the requestor verified the subject’s identity by reviewing a form of government-issued identification.
b. Information on all felony and misdemeanor convictions will be available for this purpose for as long as the subject’s last available conviction record is available — 10 years after conviction or the end of incarceration for felonies, and 5 years for misdemeanors.
c. Requestors must keep acknowledgement forms for 1 year from the date the request for information is submitted.
The statute does not change: (i) current law limiting criminal record inquiries,2 or (ii) an employer’s right to use third-party investigators to conduct background checks, including criminal record checks that comply with state and federal law such as the Fair Credit Reporting Act.
The immediate practical effect of the prohibition against criminal record inquiries on job application forms is to increase the importance of the hiring interview. The interviewer should carefully review the applicant’s work history — from completion of formal education to the present time — and get a satisfactory explanation for any gaps. On its face, the statute prohibits requiring an applicant to provide a copy of his or her criminal record information — it does not prohibit asking an applicant what he or she was doing for a period of time not explained by his or her work history. Implementing regulations, when issued, may clarify this point.
Questions about gaps in employment history should not run afoul of the current limitations on criminal history inquiries to applicants. Employers who wish to document their compliance with the current law in conducting the hiring interview can give the applicant a form explaining the limitation on inquires3 and advising the applicant that he or she need not disclose information listed on the form in answering questions during the interview.
For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:
John Adkins, firstname.lastname@example.org, 617.951.8551
Jenny Cooper, email@example.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, firstname.lastname@example.org, 617.951.8340
1 Criminal record information is defined as records and data in any communicable form compiled by a Massachusetts criminal justice agency that concern an individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release, excluding information concerning (i) criminal offenses or acts of delinquency committed by a person before the age of 17 (unless adjudicated as an adult), and (ii) offenses not punishable by incarceration.
2 Massachusetts General Laws chapter 151B, section 4(9) prohibits an employer from requesting certain information orally or in writing from an applicant or employee about the subject's prior criminal history. The employer is prohibited only from asking the subject for information concerning (i) any matter that did not result in a conviction, (ii) misdemeanors that are more than 5 years old unless there has been a subsequent conviction, and (iii) a first conviction for certain petty offenses such as simple assault, disturbing the peace, minor traffic violations and the like. The statute, which has been described as "quite narrow in scope," does not limit the employer's use of criminal history information, even concerning the above described prohibited areas, if the information is obtained from a source other than the subject.
3 The language should be on the job application form currently being used; alternatively, the employer can print out the MCAD Fact Sheet found at http://www.mass.gov/mcad/crimrec.html.
This article was originally published by Bingham McCutchen LLP.