Massachusetts Agency Releases Guidance On How It Interprets "Ban the Box" Legislation; Guidance Appears to Expand the Legislation in Two Key Ways
This is an update to the recent blog post discussing the new criminal offender record information legislation and its impact on hiring in Massachusetts. The Massachusetts Commission Against Discrimination (MCAD), has now issued a fact sheet to explain how it interprets the "ban the box" provisions of the new law. While the fact sheet is not formal regulation and it does not carry the force of law, it is important guidance for any employer hiring in Massachusetts. This is because the MCAD is the agency that investigates alleged violations of the law and that can assess damages against an employer where the MCAD determines – based on its own interpretation of the law – that the employer has violated the “ban the box” requirements.
The fact sheet appears to expand the new legislation in two key ways. First, the MCAD interprets the phrase “initial written job application” to mean any written communication with applicants before the interview. A plain reading of the statute's reference to the “initial written application form,” would seem to allow employers to ask applicants about criminal history at any time other than on the application. Despite this, the fact sheet explains that the MCAD “will presume that a written application or form requesting criminal background information prior to an interview is part of the ‘initial written application.’” (emphasis added).
Second, the MCAD seems to interpret the law as covering applications received by candidates in Massachusetts even where the position for which they are applying is located elsewhere. The fact sheet does permit multi-state employers subject to this legislation to use standard application forms with questions about criminal history, but only if the forms contain “explicit instructions” that Massachusetts applicants should not respond and that pre-interview inquiries about criminal history are not permitted under Massachusetts law. The fact sheet explains that “the employer’s disclaimer must be clear and unambiguous, in boldface type and placed and printed to attract the reader’s attention.”
A court may ultimately decide that the MCAD has overstepped its bounds with its interpretation, but until that happens, employers who are hiring in Massachusetts and who want to avoid an enforcement action by the MCAD should review the fact sheet and conform their hiring procedures.
For more information on the new fact sheet, click here.