MCAD Interprets “Ban the Box” Provision of New CORI Law

On November 4, 2010, a significant provision of the legislation reforming the Massachusetts Criminal Offender Record Information Act (“CORI Act”) went into effect. That provision prohibits most employers from inquiring about a job applicant’s criminal history on an “initial written application.” The CORI Act reform legislation, including this so-called “ban the box” provision, is described in Goodwin Procter’s August 16, 2010 Client Alert. The Massachusetts Commission Against Discrimination (“MCAD”), charged with enforcing the “ban the box” provision, recently issued a Fact Sheet interpreting the provision. This Client Alert reviews the key aspects of the MCAD’s guidance.

Employment Applications for Multi-State Employers

The MCAD Fact Sheet provides guidance on one question that has been raised by many multi-state employers:  whether the “ban the box” provision requires multi-state employers operating in Massachusetts to use a separate CORI-compliant employment application for Massachusetts, or whether a disclaimer in a standardized application will suffice. The MCAD’s position in the Fact Sheet is that a standardized application form may be used provided that:

1. the application contains explicit instructions that the employer is prohibited from obtaining criminal history information from the employee; and
2. the employer properly disclaims.

According to the MCAD, the disclaimer must be “clear and unambiguous, in boldface type and placed and printed to attract the reader’s attention.” The MCAD acknowledges that this requirement does not apply when one of the statute’s exceptions discussed below applies.

Without purporting to create the only acceptable disclaimer, the MCAD provides one example for Massachusetts employers to consider. There are some concerns with the MCAD’s sample language. For example, the MCAD’s disclaimer overstates the “ban the box” provision by suggesting that it creates a blanket prohibition on written pre-employment inquires into an applicant’s criminal history. The plain language of the provision prohibits criminal history inquiries only in the initial written application. Further, the heading above the MCAD’s disclaimer – “MASSACHUSETTS APPLICANTS ONLY” – may lead some non-Massachusetts applicants to ignore the criminal history questions, mistakenly believing that the section does not apply to them. The following is an alternative that largely tracks the MCAD disclaimer but modifies it to avoid these and other concerns:

MASSACHUSETTS APPLICANTS – READ THE FOLLOWING:

Under Massachusetts law, we may not make written, pre-employment inquiries in an initial employment application of an applicant in Massachusetts about his or her criminal history.  MASSACHUSETTS APPLICANTS SHOULD NOT RESPOND TO THE FOLLOWING QUESTIONS SEEKING CRIMINAL RECORD INFORMATION.

Other Fact Sheet Comments

Some other aspects of the MCAD Fact Sheet warrant attention:

• Inquiries Before the Interview Stage. The “ban the box” provision only prohibits criminal history questions on the initial written application. The Fact Sheet states that the MCAD will consider any written request for criminal background information before the interview to be part of the “initial written application.”  In support of its interpretation, the MCAD cites legislative history of an intent to provide applicants with opportunities to meet with employers before disclosing their criminal histories. It is not clear whether the MCAD would take the position that it is impermissible to make a request before an interview that an applicant submit a response to a written request for criminal record information at the interview.
• Effect Outside of Massachusetts. The CORI Act is silent on whether the restrictions on pre-employment inquiries into criminal history apply to companies and employees located outside of Massachusetts. The MCAD states that “[a]ny employer that does business in Massachusetts and takes applications in Massachusetts” is subject to the law. According to the Fact Sheet, the MCAD “will consider other scenarios on a case-by-case basis.” It remains unclear whether the MCAD would take the position that an employer that considers and processes applications in Massachusetts for positions outside of Massachusetts must comply with the “ban the box” provision.
• Exceptions to the Restriction on Criminal History Inquiries. The Fact Sheet acknowledges that the CORI Act provides that the ban on inquiring into criminal history on an initial written application does not apply when:

1. the job applied for is one for which a person who has been convicted of a crime is at least presumptively disqualified by law; or
2. the employer or an affiliate is subject to a law or regulation under which it is prohibited from employing persons in one or more positions who have been convicted of one or more types of offenses in one or more jobs.
   
   The Fact Sheet illustrates the second exception by noting that banks are subject to federal law prohibitions on hiring persons who have been convicted of crimes involving dishonesty, breach of trust or money laundering. It goes on, however, to state that banks and their affiliates are exempt from the “ban the box”  provision “for inquiring about these types of criminal offenses.” This suggests that the MCAD’s position is that banks and their affiliates may ask only about the types of offenses that come within the federal law prohibition. The MCAD’s position appears to create restrictions on this exception that are not set forth in the statute’s language. In the case of banks, following the MCAD’s approach could be difficult to implement, since numerous different criminal offenses come within the scope of the hiring prohibition that is applicable to banks.   

MCAD interpretations of Massachusetts discrimination law (which includes the “ban the box” provision) are entitled to substantial deference. However, they do not carry the force of law and are not effective to the extent that they are inconsistent with the law. Despite the questions about some aspects of the MCAD’s interpretation of the “ban the box” provision, Massachusetts employers should take this opportunity to consider steps to effectuate compliance with that provision. For multi-state employers with operations in Massachusetts, that includes revisiting their employment applications and developing appropriate CORI Act-compliant disclaimers.