“Ban the Box” is a Mandate, Not a Suggestion

June 7, 2018 |

Yesterday, Massachusetts Attorney General (“AG”) Maura Healey issued a press release that detailed an AG investigation into employer compliance with Massachusetts’ “ban the box” law.  This investigation, which appears to have been conducted independent of a specific complaint by an applicant or employee, revealed that many employers in the Boston and Cambridge area had paper applications that violated the state’s “ban the box” law.  As a result of the investigation, four businesses have made process changes and paid fines.  17 additional businesses received letters indicating that they must make immediate changes to comply with the law.

A Refresher on the Law

Massachusetts’ “ban the box” law limits employers’ inquiries into an applicant or employee’s criminal history in the following ways:

  • The written job application may not contain any questions related to the candidate’s criminal history; and
  • Questions (both oral and written) about the following may not be asked at any point during the interview process or at any point during the employment relationship:
    • An arrest that did not result in a conviction;
    • A criminal detention or disposition that did not result in a conviction;
    • A first conviction for: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace;
    • A misdemeanor conviction more than 5 years old; and
    • Sealed records and juvenile offenses.

What Should Employers Do?

The press release explains that the investigation is part of a “larger ongoing effort” by the AG’s office to ensure that businesses are aware of, and in compliance with, the law.  From this, employers must recognize that the AG is not only reacting to complaints filed but is also pursuing independent investigations into employer practices.  While this investigation targeted primarily retailers and restaurants using paper applications, it is inevitable that future investigations will include business in different industries and businesses who utilize electronic applications.

Proactively audit your own recruiting and hiring practices so that your business isn’t named in the next AG press release.

Some practical tips:

  • Immediately review your paper and electronic applications.  If you operate exclusively in MA, remove all language that relates to criminal history.  If you operate in multiple states, you may elect to have multiple versions of your application or to include language specifically instructing MA applicants with regard to questions of criminal history.
  • Provide a list of appropriate and inappropriate questions to all individuals who conduct interviews (whether for new hires or promotions/transfers).  This list can address not only the avoidance of certain criminal history questions but also questions that can violate other laws such as non-discrimination or equal pay.
  • Conduct training for all individuals who conduct interviews.
  • Enact specific procedures related to the running of background checks – both CORI and non-CORI.

Need assistance creating or updating an application?  Looking for a list of appropriate/inappropriate interview questions?  Are managers/supervisors in need of training?  Interested in drafting a CORI policy?  We can help.

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