Multi-State Employers Must Revise Job Applications to Address New Massachusetts Background Check Law
Recently enacted legislation in Massachusetts will significantly affect employers’ use of criminal history information for employment purposes. While most provisions of the new law (pdf) do not go into effect until February 2011, one provision, effective on November 4, 2010, requires the immediate attention of multi-state employers.
This provision generally prohibits employers from inquiring in an “initial written application form” about an applicant’s criminal history. Two narrow exceptions permit questions about criminal history if a federal or state regulation (1) disqualifies the applicant from employment in the open position based on a criminal conviction; or (2) bars the employer from hiring for one or more positions an individual with a criminal conviction. The second exception, as written in the statute, is ambiguous. It is unclear whether an employer who is barred from hiring a convicted criminal for certain positions may inquire into an applicants’ criminal history on the initial employment application used for a variety of positions, including those that can be filled by a convicted criminal. This issue is particularly important for multi-state employers who use a standard job application form for all jurisdictions.
Before the new law’s November effective date, all multi-state employers should carefully reviewany job application form that is completed by Massachusetts applicants. If the employer has no position for which federal or state law prohibits the hiring of a convicted criminal, the employer should add an instruction to Massachusetts applicants, immediately below any question seeking information about criminal history, directing Massachusetts applicants not to respond. If the employer has one or more positions for which federal or state law prohibits the hiring of a convicted criminal, the employer should consider an instruction which directs Massachusetts applicants not to answer the question unless they are applying for one or more of a list of specified positions. The list would include those positions for which state or federal law prohibits the hiring of a convicted criminal.
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