A new Massachusetts law, effective November 4, 2010, prohibits Massachusetts employers from asking applicants for criminal record information on an initial written application unless a state or federal law or regulation mandates disqualification because of a conviction. Employers may inquire about an applicant's criminal record information in subsequent steps in the application process.
The new Massachusetts law imposes additional requirements that will become effective in May 2012. Those new requirements will (1) create an internet database of criminal record information, (2) limit employers' ability to disseminate criminal record information except on a need-to-know basis, (3) prohibit an employer from taking an adverse action without disclosing the criminal record information to an applicant, (4) require most employers to develop and maintain a written criminal record policy, and (5) establish a 7-year limit on retaining applicants' criminal record information.
Currently, Hawaii is the only other U.S. state to completely prohibit employers' inquiries about applicants' criminal record information on an employment application. Under the Hawaiian statute, employers may not inquire about an applicant's criminal history until after a conditional offer of employment has been made. The employer may only withdraw the offer if the conviction record bears a rational relationship to the duties and responsibilities of the position. Some other states, such as Wisconsin, do not prohibit asking applicants about their criminal history, but do require employers to make an individualized assessment of the relationship between an applicant's conviction record and the job in connection with making hiring decisions.
Many states already prevent employers from gathering information about certain criminal record information. For example, even before passage of the new law, Massachusetts prohibited employers from asking about misdemeanors that are more than five years old unless there has been a subsequent conviction. That prohibition continues to remain in effect. California law prohibits employers from asking about marijuana convictions that have occurred more than two years prior to the application.
Employers should review their employment applications to ensure the applications conform to the laws of each state in which the applications are used. For more information about gathering background information on applicants, please see our article, Employer Considerations in Using Background Checks In Hiring.
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.
