Last summer, Governor Deval Patrick signed into law legislation reforming the Massachusetts Criminal Offender Record Information Act (“CORI Act”). The most significant aspect of this new law is the so-called “ban the box” provision, which prohibits Massachusetts employers from asking about an applicant’s criminal history on an initial application.[1] This provision is described in detail in our August 2010 Client Alert, Massachusetts CORI Reform.
Recently, the Massachusetts Commission Against Discrimination (“MCAD”), the state agency enforcing the “ban the box” provision, issued a Fact Sheet detailing its interpretation of the new law. The Fact Sheet is not law; it is the MCAD’s interpretation of the law. While courts are not required to follow the MCAD’s interpretation, courts are required to give the interpretation substantial deference. We have described the key components of the Fact Sheet below.
Standardized Multi-State Applications
Many of our clients who operate in multiple jurisdictions have asked if they can still use one standard application in all states, or whether they must have a separate application for their Massachusetts operations. The MCAD has opined that employers may continue to use standardized applications, provided they contain a prominent disclaimer. The disclaimer must be “clear and unambiguous, in boldface type and placed and printed to attract the reader’s attention.” The MCAD provided the following sample disclaimer.
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.
As we noted in our prior alert about this law, the “ban the box” provision only prohibits criminal history questions on the initial written application. In its Fact Sheet, however, the MCAD stated that it considers any written request for criminal history prior to the interview to violate the statute. The above disclosure mirrors this interpretation. The MCAD reasoned that the Legislature enacted the law to give applicants the opportunity to be interviewed in person before disclosing their criminal history. Due to the potential conflict between the language of the statute and the Fact Sheet, Massachusetts employers who intend to request criminal history information after the initial application but before the interview should seek legal advice.
Exempt Employers
Certain employers are not covered by the law. They include employers who are: (1) hiring for a position that a felon would, by law, not be able to hold; and (2) legally prohibited from hiring an individual who is convicted of a particular type of offense.
The Fact Sheet acknowledges that banks and other financial institutions fall within the second exemption since federal law prohibits them from hiring applicants who have been convicted of crimes of dishonesty, breach of trust or money laundering. The MCAD opined that these companies may, therefore, ask about a conviction of these particular crimes on an initial application. However, the MCAD is taking the position that such employers are still prohibited from asking generally about an applicant’s criminal history. As a result, employers who may legally ask about certain crimes should limit their inquiry to the particular crimes that would disqualify the applicant from the position.
Going Forward
Employers hiring employees in Massachusetts should have already updated their applications to comply with the ban the box provision.
Multi-state employers with operations in Massachusetts who use general “one size fits all” applications should revise their employment applications to include the appropriate disclaimer language.
Multi-state employers should also be aware that other states ban certain inquiries and require specific disclaimer language. Employers should carefully review the laws of all states in which they hire employees when developing a general employment application. Our attorneys have extensive experience in crafting applications that can be used throughout the United States without violating any state law.
If you have any questions about your obligations as a Massachusetts employer or any other employment issues, please do not hesitate to contact us.
[1] Not all employers are banned from making this initial inquiry on applications. As explained in our earlier Client Alert, employers who are prohibited by federal or state law from employing applicants with a criminal record can request conviction information on the application.