In 2010, Massachusetts enacted a new law governing the use of criminal records for employment in Massachusetts. We have commented on the law in the legislative updates section of previous newsletters:
Since then, the Massachusetts legislature delayed the effective date of some of the parts of the law that would have come into effect on February 6, 2012. The new effective date is May 4, 2012. The change is buried deep in the general appropriations act for 2010 and 2011 (section 102 of Chapter 359 of the Massachusetts session laws).
One key component that employers must address before May 4 is this requirement:
A person who annually conducts 5 or more criminal background investigations, whether criminal offender record information is obtained from the department or any other source, shall maintain a written criminal offender record information policy providing that, in addition to any obligations required by the commissioner by regulation, it 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.
Employers who do not already have a more elaborate policy may want to adopt a simple policy similar to the following:
The company’s policy is that, before making an adverse decision based on criminal offender record information, the company notifies the subject of the potential decision, of the criminal offender record information on which the potential adverse decision would be based, of this policy, and of how to correct a criminal record.
This approach may be currently sufficient to satisfy the legal requirement that the employer adopt a policy. (Note that the law allows a commission to add other components that the policy must address. When the commission acts, this approach may no longer be sufficient.)
A company that follows this approach and can fulfill the notice obligation by adding the following language to the pre-adverse-action letters it already sends:
The company’s policy is that, before making an adverse decision based on your criminal offender record information, we notify you of the potential decision, of the criminal offender record information on which we might make an adverse decision, of this policy, and of how to correct a criminal record. This letter notifies you of these items.
To correct a criminal record, please contact backgroundchecks.com at the number below. backgroundchecks.com will assist you by identifying the court or agency to contact.
Since this policy and statement would be true for all applicants and employees, we see no reason to limit them to Massachusetts applicants and employees, which would allow the employer to make a change to its pre-adverse-action notices in all states.
The other key component that employers must implement by May 4 is this requirement:
In connection with any decision regarding employment, volunteer opportunities, housing or professional licensing, a person in possession of an applicant’s criminal offender record information shall provide the applicant with the criminal history record in the person’s possession, whether obtained from the department or any other source prior to questioning the applicant about his criminal history. If the person makes a decision adverse to the applicant on the basis of his criminal history, the person shall also provide the applicant with the criminal history record in the person’s possession, whether obtained from the department or any other source; provided, however, that if the person has provided the applicant with a copy of his criminal offender record information prior to questioning the person is not required to provide the information a second time in connection with an adverse decision based on this information.
This requirement primarily affects the hiring process depending on whether the background check or the interview happens first. If the background check happens first, you must provide a copy of the information to the applicant before asking the applicant about it. (Technically, this could happen outside the interview – it is just more likely to happen inside the interview.) Remember that the part of the law already in effect makes it illegal:
For an employer to request on its initial written application form criminal offender record information; provided, however, that except as otherwise prohibited by subsection 9, an employer may inquire about any criminal convictions on an applicant’s application form if: (i) the applicant is applying for a position for which any federal or state law or regulation creates mandatory or presumptive disqualification based on a conviction for 1 or more types of criminal offenses; or (ii) the employer or an affiliate of such employer is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either 1 or more positions, who have been convicted of 1 or more types of criminal offenses.
The risk-averse reading of this statute is to treat any collection of information from the applicant as the “initial written application form” if it occurs before an interview. Of course, the background check that you request from a background screening agency is not a request on the application form at all. Together with the part of the law cited above, this means that the first time you can ask your applicant about criminal history is during the interview. This rule also has the benefit of being easy for managers to follow.
As noted in the CORI Fact Sheet from the 4th Quarter 2010 newsletter, these requirements apply to any employer that does business in and takes employment applications in Massachusetts. But employers should note that the Massachusetts Commission against Discrimination reserves the right to examine other scenarios on a case-by-case basis.
We are not a law firm and cannot give legal advice. We have not (and cannot legally) considered your company’s specific situation when considering the solutions recommended above. If you need that kind of advice, please consult an attorney of your choice.
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