Massachusetts bans criminal history questions on job application forms: employers must take action or risk noncompliance

On August 6, 2010, Massachusetts Governor Deval Patrick signed legislation that will require Massachusetts employers to change the way they seek criminal history information concerning job applicants. This legislation substantially changes Massachusetts’ Criminal Offender Record Information (“CORI”) system, which maintains information regarding individuals’ criminal histories.  While much of the new law relates to administrative changes in the system (creating a database, sealing records, granting/limiting access, etc.), at least one portion of the law will impact almost all Massachusetts employers.

The law, which will take effect on November 4, 2010, will prohibit most employers from  “request[ing] on [their] initial written application form CORI information.”[1]  This key provision of the new law has been dubbed the “ban the box” provision by supporters and the media in reference to the fact that many application forms ask applicants to check “yes” or “no” boxes in response to a number of questions regarding their criminal histories. The effect of the “ban the box” provision is that employers’ application forms used in Massachusetts can no longer ask any criminal history questions. The new law does not, however, prevent employers from asking certain criminal history questions later on in the application process.

The rationale behind the “ban the box” provision is to stop employers from screening out candidates solely on the basis of the criminal history information included in their completed application forms.  The theory is that the new law will put applicants with criminal histories on equal footing with other candidates so that such applicants will now have a chance to explain their criminal histories in person during an interview. Supporters of this new law argue that it will increase the chances that an applicant with a criminal history will be able to obtain employment, which will reduce crime recidivism rates. 

While the merits of that argument can be debated, one thing that is for certain is that employers who do business in Massachusetts will have to make changes in the way they obtain applicants’ criminal history information. While employers will not be able to ask criminal history questions on their initial application forms, there is nothing in the new law preventing employers from asking appropriate criminal history questions during an interview or requiring applicants to complete a criminal history questionnaire after submitting an initial application form and interviewing for the position.  Employers can, and oftentimes should, continue to obtain what can be critical criminal history information.

If an employer does decide to ask (orally or in writing) criminal history questions after an  applicant submits his/her initial application form and interviews for the position, the employer must be careful to comply with existing law, which restricts the scope of the criminal history questions that may be asked. Employers may not, at any time, ask about:

• Arrests, detentions, or dispositions that did not result in a criminal conviction;
• A first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace;
• Any misdemeanor conviction that is more than five years old, unless the period of incarceration following the conviction ended within the last five years or the person has been convicted of another offense in the last five years.

Thus, this new law creates quite a minefield for employers to navigate as they evaluate applicants for employment and whether/when/how to ask criminal history questions. All covered employers should review their initial application forms used in Massachusetts to ensure they do not contain any criminal history questions. Further, employers who decide to ask criminal history questions during the interview process should consider the numerous questions and issues that may arise, including:  (i) at what point during the interview, if at all, should the interviewers ask permissible criminal history questions; (ii) have the interviewers who may ask criminal history questions been properly trained regarding what questions may and may not be asked; (iii) how should the interviewers document the questions that were asked; and (iv) how should the interviewers respond to questions that the applicants may ask when providing their criminal histories? Similarly, employers who intend to ask applicants to answer criminal history questions after the interview process should ensure that written forms are compliant with the new law. 

Because the “ban the box” provision contains ambiguous language, it is unclear if it applies to an employer’s current employees who apply for other positions within the organization. In other words, in such circumstances, can employers ask criminal history questions on the internal application forms current employees complete to begin the application process? While the internal application forms will likely be the “initial written application” employees submit when applying for a position, all such employees almost certainly will have submitted earlier application forms when they first joined the organization. If the purpose of the “ban the box” provision is to allow an employer to “get to know” an applicant, the provision should not be applicable when a current employee (who is already known to the employer) applies for a different position in the organization. At the same time, what if the new position is in a different location and reports to a manager who does not know the employee submitting the application? In that circumstance, one could see how the “ban the box” provision may apply. We are hopeful that the forthcoming regulations will address this (and other) ambiguities in the new law, but until then, we recommend that employers take the conservative approach and change their initial application forms used in Massachusetts for both internal and external applicants so that the forms do not ask any criminal history questions. Because this new law has received significant media attention, employers can be sure that applicants and various advocacy groups will push to have the law interpreted broadly and will draw attention to non-compliant employers. 

The new law will also impact Massachusetts employers in several additional ways. Although these new provisions (which are set forth below) will not take effect until 2012, they will apply to all employers in Massachusetts (i.e., the exceptions listed in footnote 1 above will not apply). The other provisions that will, subject to forthcoming regulations, impact Massachusetts employers are:  

• One benefit of the new law for employers is that it will grant employers greater (and hopefully faster and more accurate) access to applicants’ CORI reports. Under the current legislative scheme, many employers cannot obtain CORI reports directly and are, therefore, forced to use third parties to collect applicants’ criminal history information, which often results in incomplete and/or inaccurate information.
• An employer who obtains an applicant’s CORI report must provide the applicant with a copy of the report before questioning the applicant about his/her criminal history.  Similarly, an employer that makes an adverse decision based on the applicant’s criminal history must provide the applicant with a copy of the CORI report if the employer has not already provided a copy in connection with questioning the applicant about his/her criminal history. If the employer fails to provide a copy of the CORI report, the employer may be subject to investigation, hearings, and sanctions by the Criminal Record Review Board.
• An employer that annually conducts five criminal background investigations must maintain a CORI policy providing that it will: (i) notify an applicant of a potential adverse decision based on the applicant’s CORI report; (ii) provide a copy of the CORI report and the policy to the applicant; and (iii) provide information to the applicant regarding how to correct an erroneous CORI report.
• The person seeking a CORI report on behalf of the employer must certify, under the pains and penalties of perjury, that: (i) he/she is an authorized designee of the employer; (ii) the request is for an authorized purpose; (iii) the subject of the CORI report has signed an acknowledgement form authorizing the employer to obtain the report; and (iv) the employer has verified the identity of the subject by reviewing a form of government issued identification.
• The employer must maintain the subject’s acknowledgement/authorization form for at least one year, and the forms are subject to audit by the Department of Justice Information Services.
• The criminal record information made available in a CORI report will be limited to:
• Pending charges, which includes cases continued without a finding until dismissed.
• Felony convictions, which will be available for ten years following the disposition of the matter, including the termination of incarceration. All prior felony convictions will be included on the CORI report for the entire period that the most recent conviction record is available.
• Misdemeanor convictions, which will be available for five years following the disposition of the matter, including the termination of incarceration. All prior misdemeanor convictions will be included on the CORI report for the entire period that the last available conviction record is available.
• Convictions for murder, voluntary manslaughter, involuntary manslaughter, and certain sex offenses, which will remain on the CORI report permanently.
• Employers may not share CORI information except with individuals within the organization who have a need to know the CORI information to serve the purpose for which the information was obtained.
• An employer who shares the information in a CORI report must maintain a dissemination log for one year following the dissemination of the CORI information. The log, which is subject to audit, must include the following:
• The subject’s name and date of birth;
• The date of dissemination;
• The name of the person to whom the information was disseminated; and
• The purpose of the dissemination.
• An employer may not maintain a copy of any CORI report or the information contained in a CORI report for more than seven years from the last date the subject worked as an employee or volunteer, or in the case of applicants, the date of the final decision regarding the applicant.
• Employers must set reasonable hours and places for individuals to inspect their CORI information in the employer’s possession. Employers must also impose restrictions necessary to ensure the security of the CORI information in their possession and the identity of the individuals who seek to review the information.

Nixon Peabody’s labor and employment attorneys are available and ready to assist employers as they navigate the provisions of this new law and make changes to the way in which they obtain criminal history information about job applicants.

1. This provision will not apply: (i) to employers with fewer than six employees; (ii) if the applicant is applying for a position for which any federal or state law/regulation creates a mandatory or presumption of disqualification based on a criminal conviction; and (iii) if the employer or an affiliate is subject to an obligation imposed by a federal or state law/regulation not to employ individuals convicted of certain crimes in at least one of if its positions. [Back to reference]

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