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The Massachusetts Commission Against Discrimination
("MCAD") has issued guidance on "An Act Reforming
the Administrative Procedures Relative to Criminal Offender Record
Information and Pre- and Post-Trial Supervised Release" (the
"Act"), signed into law on August 6, 2010 by
Massachusetts Governor Deval Patrick. The Act, codified at G.L. c.
151B, § 4(9-1/2), prohibits employers from asking job
applicants to disclose information about their criminal record
history prior to the interview stage of the hiring process. It
applies to any employer that does business in Massachusetts and
takes applications in Massachusetts.
The Act went into effect on November 4, 2010, but it left many
questions unanswered, such as what constitutes an "initial
written application form" and whether national employers would
be precluded from including questions about criminal conviction
history on form applications. Since that time, the MCAD, the
enforcing agency of G.L. c. 151B, § 4(9-1/2) as well as the
existing Massachusetts Criminal Records Statute G.L. c. 151B §
4(9), has provided some clarification defining the obligations of
employers.
Under Massachusetts law, employers were already prohibited from
asking applicants or current employees, in writing or orally,
about: (1) prior arrests, detentions, or dispositions that did not
result in a conviction; (2) prior first convictions for the
following misdemeanors: drunkenness, simple assault, speeding,
minor traffic violations, affray, or disturbance of the peace; (3)
misdemeanor convictions where the date of the conviction predates
the inquiry by more than 5 years; or (4) sealed records or juvenile
offenses. See G.L. c. 151B, § 4(9). As of November 4, 2010,
employers may no longer ask job applicants to provide any
information about their criminal history or felony or misdemeanor
convictions on initial written applications (unless the employer or
the position falls within a statutory exemption).
Notably, the MCAD has indicated that national and international
employers may continue to use standard application forms, provided
that such forms contain explicit instructions that employers in
Massachusetts may not obtain criminal history information from
applicants. (Such a disclaimer would not be necessary, and an
employer could inquire about applicants' criminal history, if
an employer falls within one of the statutory exemptions in G.L. c.
151B, § 4(9-1/2), as discussed below.) Any disclaimer must be
clear and unambiguous, in bold print, and positioned within the
application form to attract a reader's attention.
Though the new law only explicitly prohibits inquiries about
criminal history on an "initial written application
form," the MCAD has indicated that even oral inquiries about
an applicant's criminal history may be prohibited if such
inquiry occurs prior to the interview stage. Thus, it appears that
the form of the "initial written application form" does
not matter as much as the timing of the inquiry, and it does not
matter if such inquiry is written or oral. With that in mind,
employers should not make any inquiries into an applicant's
criminal history until they have reached the formal interview stage
established as part of their hiring process. And even at the
interview stage, employers are still prohibited from asking about
those topics enumerated in G.L. c. 151B, § 4(9), discussed
above.
Employers may be exempted under G.L. c. 151B, § 4(9-1/2) if
they fall within one or both statutory exemptions. An employer may
ask about criminal convictions if:
The applicant is applying for a position where 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
The employer or an affiliate is subject by federal or state law
or regulation not to employ persons in one or more positions who
have been convicted of one or more types of criminal offenses.
The MCAD has indicated, however, that a "regulation"
will only create a mandatory or presumptive disqualification if it
was promulgated in accordance with G.L. c. 30A (for state
regulations) or 5 U.S.C. §§ 551 et seq. (for federal
regulations).
The MCAD will assess each fact pattern on a case-by-case basis.
Until this new law and its implementation have been tested, and
additional guidance has been provided by its enforcing bodies,
employers should not ask about criminal record history in
Massachusetts prior to an interview.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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