Recently enacted legislation in Massachusetts will significantly affect employers’ use of criminal history information for employment purposes. While most provisions of the new law (pdf) do not go into effect until May 2012, one provision, effective on November 4, 2010, requires the immediate attention of multi-state employers.

This provision generally prohibits employers from inquiring in an “initial written application form” about an applicant’s criminal history. Two narrow exceptions permit questions about criminal history if a federal or state regulation (1) disqualifies the applicant from employment in the open position based on a criminal conviction; or (2) bars the employer from hiring for one or more positions an individual with a criminal conviction. The second exception, as written in the statute, is ambiguous. It is unclear whether an employer who is barred from hiring a convicted criminal for certain positions may inquire into an applicants’ criminal history on the initial employment application used for a variety of positions, including those that can be filled by a convicted criminal. This issue is particularly important for multi-state employers who use a standard job application form for all jurisdictions.

Before the new law’s November effective date, all multi-state employers should carefully reviewany job application form that is completed by Massachusetts applicants. If the employer has no position for which federal or state law prohibits the hiring of a convicted criminal, the employer should add an instruction to Massachusetts applicants, immediately below any question seeking information about criminal history, directing Massachusetts applicants not to respond. If the employer has one or more positions for which federal or state law prohibits the hiring of a convicted criminal, the employer should consider an instruction which directs Massachusetts applicants not to answer the question unless they are applying for one or more of a list of specified positions. The list would include those positions for which state or federal law prohibits the hiring of a convicted criminal.

Notably, the new law imposes no restriction on an employer’s ability to inquire into an applicant’s criminal history at any point in the hiring process after the initial written employment application has been submitted. Multi-state employers should note, however, that Massachusetts law prohibits employers from asking applicants about certain criminal records at any stage of the hiring process. To comply with these restrictions, employers must refrain from asking about any of the categories of criminal history listed below, or if asking a broad question that might otherwise call for disclosure, instruct the applicant not to disclose any of the below-listed categories:

• arrests not resulting in a conviction;
• sealed records;
• crimes committed while a juvenile unless charged as an adult;
• convictions for misdemeanors where the date of conviction precedes the question by more than five years; and
• first convictions for misdemeanors involving drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace.

In light of these restrictions, employers should exercise caution when making any oral inquiry related to criminal history. A better approach would be to move the written question about criminal history from the initial application to a later stage of the hiring process. For example, employers who require applicants to complete a background check authorization after screening the initial written application could add to the background check paperwork provided to Massachusetts applicants a written inquiry into the applicant’s criminal history. That inquiry would include a listing of the categories of criminal history that the applicant should not disclose. This approach allows employers to require a written answer to an inquiry into criminal history before making the final employment decision while complying with the new Massachusetts restriction.

To learn more about this legislation and its implications for employers, please see Littler ASAP, “Massachusetts Becomes the Second State to ‘Ban the Box’ on All Employment Applications” by Carie Torrence.

This entry was written by Philip L. Gordon and Carie Torrence.

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