Seyfarth Synopsis: Massachusetts Attorney General steps up enforcement of Massachusetts "ban-the-box" law citing 19 businesses for asking impermissible questions about an applicant's criminal history on an employment application.
Last week, Attorney General Maura Healey announced that she had cited 19 businesses for violation of the state's ban-the-box law. This law prohibits employers from asking job applicants about their criminal history on initial employment applications, subject to very limited exceptions. The AG announced a similar round of enforcement action in May 2018 that included the investigation of over 70 Massachusetts employers and resulted in 21 citations. Of that group, 4 employers were fined $5,000 and were required to enter into an agreement with the AG's office.
The current round of enforcement action targeted a wide range of businesses including a national clothing retailer, several restaurants, a product design and manufacturing company, grocery store, hardware store, liquor store, and shipping service. The AG entered into agreements with two of the larger companies. As part of those agreements, the Companies were fined $5,000 and were required to alter their application process to comply with the law's requirements. The AG's office sent letters to the other 17 employers warning them that their employment applications contained improper questions in violation of the law and requiring them to come into compliance immediately. The improper questions contained in the applications included whether the applicant (1) had ever been convicted of violating the law, (2) had ever been convicted of a felony, and (3) had ever been convicted of a felony or misdemeanor other than a minor traffic violation. Since issuing these letters, all 17 employers have confirmed compliance with the law.
In addition to prohibiting employers from including criminal history inquiries on an initial employment application, MA law prohibits employers from asking applicants (either verbally or in writing) about certain criminal history at any time during the application process or employment. This prohibition includes questions about: (1) an arrest, detention, or disposition in which no conviction resulted, (2) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding minor traffic violations, affray or disturbance of the peace, or (3) any misdemeanor conviction where the date of conviction or completion of a period of incarceration, occurred 5 or more years prior. Changes to the CORI law in October 2018 imposed additional requirements on employers to include a detailed statement about expunged records on any form that seeks information about an applicant's criminal history, in addition to a statement about sealed records that has long been required.
The AG's announcement noted the goal of the 2010 CORI law was to address high unemployment and barriers to re-entry for people with criminal records by improving their access to employment opportunities. AG Healey stated that "[t]oo many people who have paid their debt to society still face barriers to even landing an interview. These actions are an effort to give all job applicants a fair chance." These enforcement actions are a continued effort by the AG's office to educate residents and businesses about the law and to ensure that a person's CORI is not used improperly to deny employment.
The AG's enforcement action serves as a reminder for employers to review their employment applications, hiring-related documents, and hiring process to ensure compliance with the law.
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