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Written By: Frederick Finberg

The Bennett Law Firm, P.A.

(Portland, ME)

     Massachusetts Governor Patrick signed into law, legislation that prohibits employers from asking applicants to disclose their criminal history as part of the initial employment application. The law takes effect November 4, 2010. Although much of the 58 page law deals with a revamping of Massachusetts’ Criminal Offender Record Information (“CORI”) system, several provisions, including the “Ban the Box” provision, have a direct impact on employers.

     The law will prohibit most employers from using an initial employment application form that requests an applicant to provide criminal history information on that application form. Thus, the typical criminal background question on the application will no longer be a permissible question on employment applications in Massachusetts. Supporters refer to this provision as the “Ban the Box” provision because applicants will no longer need to check a box on the application confirming or denying a criminal background. The hope is that the law will stop employers from automatically screening out applicants solely on the basis of criminal history information included in a completed initial application form.

     Massachusetts is the second state in the nation to ban both public and private employers from requesting criminal record information on initial job applications. Hawaii was the first state to do so. The Hawaii law is more restrictive in that a Hawaii employer cannot ask an applicant about his or her criminal background until after a conditional offer of employment has been made. Massachusetts employers need not wait until a conditional offer of employment is made, and may ask an applicant about such history during the interview process. An employer may also take adverse action based on an applicant’s criminal history. However, prior to questioning an applicant or taking adverse action based on criminal record information, an employer must provide the individual with a copy of any criminal records in its possession.

     Even during the interview process, a Massachusetts employer will be limited in what it can ask an applicant. Such limitations include a ban on asking about arrests, a first conviction for drunkenness, simple assault, speeding, minor traffic violations, disturbance of the peace, or any misdemeanor that is more than five years old with certain exceptions.

     An employer that annually conducts five or more criminal background investigations must establish and maintain a written criminal offender record information policy providing that, in addition to any obligations required by regulation, the employer will: (i) notify the applicant of the potential adverse decision based on the criminal offender record information; (ii) provide a copy of the criminal offender record information and the policy to the applicant; and (iii) provide information concerning the process for correcting a criminal record.

     Though, unlike Massachusetts, most states do not ban criminal history questions on an initial application, many states do place some restrictions on what an employer may ask an employee as part of the application process.

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