Massachusetts Bans Criminal History Queries on Job Applications

Advocates on behalf of Massachusetts workers have been concerned about employers that automatically reject job applicants who check yes to questions on written job applications asking whether they have a criminal record. The advocates argued that workers should have a chance to explain their past conduct or to show that they have been rehabilitated.

In response, state lawmakers passed legislation barring employers from including "check the box" questions regarding an individual's criminal history on an "initial written application" for employment. The ban goes into effect Nov. 4. Employers that violate the ban will be subject to government fines and private legal action.

Under the new law, an employer may orally ask about an applicant's criminal history during an interview, but only if the employer has the employee's criminal history report in hand prior to asking about the applicant's record. Moreover, if an employer makes an adverse decision based on information contained in the report, a copy of the report must be provided to the applicant unless the applicant was previously given a copy.

Employers may obtain reports for a fee from the state Criminal Offender Record Information database, which includes information about criminal charges, arrests, and incarceration.

The law may pose practical problems for staffing firms, because it may not be possible for the firm to obtain a copy of an applicant's CORI record during the initial interview. If an employer requests a criminal history report after the interview and decides not to hire an applicant based on the report, the employer will have to provide the report to the applicant and tell the applicant it is the reason the applicant was not hired. That information may be provided electronically, but in some cases an applicant may have to come back to the office.

In addition to the requirements of the Massachusetts law, employers that obtain CORI reports also must comply with the federal Fair Credit Reporting Act, which imposes additional obligations. Under FCRA, employers must give applicants prior written notice in a stand-alone statement that such a report might (or will) be obtained, and applicants must authorize employers in writing to obtain such reports. Also, employers must wait a "reasonable" amount of time after furnishing a copy of the report to an applicant before making an adverse decision. ASA counsel has advised that five days probably will be considered a reasonable amount of time.

State business groups supported the final version of the law, which includes some employer protections. Employers can't be held liable if they reject an applicant based on erroneous information in the CORI database, and reliance on CORI will protect employers from liability for negligent hiring.

Most staffing firms only conduct criminal background checks if requested by the client, if the staffing firm determines that the sensitive nature of the assignment warrants such a check, or if such checks are required by law. Even if your firm has a formal policy regarding criminal background checks, you should consult with your legal advisers to ensure that your application processes are in compliance with the new law.

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