In August, 2010, the Massachusetts legislature substantially revised procedures concerning Criminal Offender Record Information (CORI). (For a copy of our earlier advisory on the new legislation, please click here.) The revisions included significant limitations on an employer’s ability to request criminal history information from applicants in an initial written application. The Massachusetts Commission Against Discrimination (MCAD), the agency charged with enforcement of these restrictions, has now issued a Fact Sheet concerning the new restrictions. Highlights from the Fact Sheet, issued this month, include the following:
Model Disclaimer Language for Use by Multi-State Employers. The MCAD’s Fact Sheet includes the following model disclaimer language for multi-state employers to use on their application forms concerning the disclosure of criminal history information:
MASSACHUSETTS APPLICANTS ONLY: 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.
The Fact Sheet states that the disclaimer must be clear and unambiguous, in boldface type, and placed and printed to attract the applicant’s attention. Notably, the model disclaimer imposes restrictions beyond those set forth in the new legislation since employers are permitted to make written inquiries concerning an applicant’s criminal history information (other than those previously off limits under Mass. Gen. Laws. ch. 151B, § 9, i.e., inquiries concerning arrests, detentions, or dispositions that did not result in a conviction; first convictions for drunkenness, simple assault, speeding, minor traffic violations, affray, and disturbance of the peace; and misdemeanor convictions or incarcerations for misdemeanor convictions occurring five or more years before the employment application date unless there has been a subsequent conviction within five years as long as that information is sought after the initial written application).
Use of the Two Exceptions. The Fact Sheet also sets forth the MCAD’s interpretation of the two exceptions to the recent legislation’s restrictions on criminal history inquiries. The MCAD states that the first exception – when an individual is applying for a position for which federal or state law or regulation creates a mandatory or presumptive disqualification based on a criminal conviction – will only be available for regulations issued pursuant to the state or federal Administrative Procedures Acts. The Fact Sheet specifically states that the Massachusetts Executive Office of Health and Human Services’ CORI regulations do not create a mandatory or presumptive disqualification as defined in the new legislation.
With respect to the second exception – employers who are obligated under state or federal law not to employ persons with criminal convictions in particular positions – the MCAD Fact Sheet references an employer’s ability to inquire about the particular type of criminal offense that would disqualify the applicant from the position at issue. The statute, in contrast, appears by its terms to allow an employer in this situation to inquire in the written application about any criminal conviction other than those previously off-limits under Mass. Gen. Laws. ch. 151B, § 9.
Initial Written Applications. The Fact Sheet states that any written application or form that individuals are asked to complete before an interview occurs is presumed by to be an “initial written application.” In other words, a hiring process in which an employer makes a written inquiry of applicants concerning their criminal history at any point before an interview occurs will trigger a presumption, in the MCAD’s view, that the employer has violated the law.
For a complete copy of the MCAD Fact Sheet, please click here.