MCAD Issues Fact Sheet Regarding Criminal History Inquiries on Employment Applications

On August 6, 2010, Governor Patrick signed into law legislation overhauling the Commonwealth’s Criminal Offender Record Information (CORI) law.  One provision of the new law, which took effect on November 4, 2010, makes it unlawful for employers to request criminal history information on an “initial written application.”  The Massachusetts Commission Against Discrimination (MCAD), which is charged with enforcement of this provision, recently issued a “Fact Sheet” intended to provide guidance regarding the application of these new restrictions.  The Fact Sheet is available here. Among other things, the Fact Sheet provides the MCAD’s view as to when in the hiring process an employer may request criminal history information, how multi-state employers can comply with the law, and the scope of the new law’s coverage.

Seeking Criminal History Information Prior to the “Interview Stage”

The new CORI law makes it unlawful for an employer to request criminal history information on an “initial written application form.”  In the Fact Sheet, the MCAD interprets this restriction to prohibit employers from requesting criminal history information on any written application or form “prior to an interview.”  This interpretation seems to lack a clear basis in the statute, which includes no mention of interviews.  The MCAD’s view also appears to be in tension with language in the statute that limits the new law’s restrictions to inquiries made on an initial written application.  Prior to the MCAD’s issuance of the Fact Sheet, many attorneys and human resources professionals interpreted the statute and its reference to an “initial written application form” to permit employers to ask candidates about their criminal history in a written form, so long as that inquiry did not occur at the outset of the hiring process.  The MCAD, however, has stated that it “will presume that a written application or form requesting criminal background information prior to an interview is part of the ‘initial written application.’”

Employers May Use a Disclaimer for Massachusetts Applicants on a Multi-State Application

The Fact Sheet also sets forth the MCAD’s view that multi-state employers may use a disclaimer to instruct Massachusetts applicants not to answer a criminal history inquiry on a standardized employment application, rather than using a separate application for Massachusetts applicants or undertaking other more burdensome measures.  The MCAD states that such disclaimers “must be clear and unambiguous, in boldface type and placed and printed to attract the reader’s attention.”  The Fact Sheet further states that a disclaimer must include a statement that “the employer is prohibited from obtaining criminal history information from the employee.”  Again, the MCAD’s interpretation seems to be broader than the language of the statute.  There is nothing in the statute that requires employers to notify employees about its restrictions on the collection of criminal history information.  Moreover, the Fact Sheet includes a model disclaimer, which states that “Under Massachusetts law, an employer is prohibited from making written, pre-employment inquires of an applicant about his or her criminal history.”  This proposed language is broader even than the view of the law stated elsewhere in the Fact Sheet, which expressly allows employers to request such information during pre-offer interviews.

Application of the Law to Out-of-State Employers

Another issue that arises under the new CORI law is the extent to which restrictions on criminal history inquiries in the hiring process may apply to applicants or activities occurring outside of Massachusetts.  In the Fact Sheet, the MCAD states its view that the law applies to “[a]ny employer that does business in Massachusetts and takes applications in Massachusetts . . .” This statement leaves a number of questions unanswered. For example, it is not clear whether the MCAD will take the position that the new law applies to an application taken by a company based in Massachusetts for a position to be filled in New Hampshire, an application taken from a Massachusetts resident by a Vermont-based company with an office in Massachusetts, or other scenarios.  The statute, itself, is silent on this issue.

MCAD Limits Exceptions to the New Restrictions on Criminal History Inquiries

The new CORI law includes two exceptions to the blanket prohibition against requesting criminal history on an initial written application: An employer may ask about criminal convictions if (1) the applicant is applying for a position for which a federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction; or (2) the employer is subject to an obligation under a federal or state law or regulation not to employ persons who have been convicted of certain offenses.

With respect to the first exception, the MCAD states that an employer is exempt from the application requirement if a “properly promulgated statute or regulation specifically bars the employer from hiring an applicant with a particular criminal conviction.”  The Fact Sheet explains that directives that are not adopted in compliance with the governing state or federal procedures for the promulgation of agency regulations will not give rise to this exception, nor will a regulation that merely provides a mechanism by which an employer may decline to hire an applicant on the grounds of a prior criminal conviction.

The MCAD also appears to take a narrow view of the effect of the exceptions.  The Fact Sheet offers an example of a law that prohibits banks from hiring individuals who have been convicted of “a crime that involves dishonesty, breach of trust or money laundering” and notes that an institution subject to these laws may inquire about “these types of convictions.”  The language of the new statute, however, provides that if either exception is met, the new law’s restrictions on criminal history inquiries simply do not apply.  There is, therefore, a strong argument that an employer in the position described in the Fact Sheet would not be limited to asking about the designated convictions but would be permitted to ask about any criminal convictions, other than those minor offenses that have long been prohibited in employment applications by other provisions of Chapter 151B.

Effect of the Fact Sheet

The Fact Sheet is not a formal regulation, and it does not carry the force of law. Based on the discrepancies between the MCAD’s view and the language of the statute, it remains to be seen whether the courts will extend deference to the views stated in the Fact Sheet in enforcing the provisions of the new CORI law pertaining to employment applications.  The Fact Sheet does, however, provide insight into the manner in which the MCAD will enforce those provisions in proceedings that take place before that agency.  The Commission is empowered to accept charges against employers, conduct investigations, hold public hearings, and award damages against employers for violations of these new restrictions on criminal history inquiries in the hiring process.  Employers should, therefore, take the contents of the Fact Sheet into account in designing strategies for compliance with the new law.

If you have any questions about this legislation, please contact the Seyfarth Shaw attorney with whom you work, or any Labor and Employment attorney on our website.