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State Fines Companies for Asking About Criminal Histories

May 21, 2019
 
Massachusetts passed a criminal justice reform law in 2010 that required most employers to amend their employment applications by removing the question that asked applicants whether they had been convicted of a misdemeanor or felony.
 
Most employers removed the question years ago, but Massachusetts Attorney General Maura Healey announced $5,000 fines earlier this month for two companies that still had criminal-history questions on their initial employment applications. 
 
The goal of the law was to help people reentering society after a criminal conviction to at least get the interview assuming they were otherwise qualified for the position. Employers may still engage in a background check, including a criminal background check post interview. 
 
The two companies were fined because an investigation showed that the applicants suffered actual harm such as a lost employment opportunity because the question was asked. The attorney general’s office sent warnings to 17 other companies requiring them to remove similar questions from their job applications. 
 
Examples of the illegal questions being asked included 
  • whether they had ever been convicted of violating the law, 
  • whether they had ever been convicted of a felony or misdemeanor other than a minor traffic violation, and 
  • whether they had ever been convicted of a felony.
The companies receiving the warning letters ranged from retail and personal-service companies, to the hospitality organizations. 
Employment application review time
 
The action by the attorney general serves as a timely reminder for employers to review their employment applications to make sure they comply with all relevant laws. Areas where employers may face trouble for an outdated application include:
  • Pay equity - following the adoption of the pay equity law in 2018, employers should have removed any questions about an applicant’s previous wage history. 
  • Age – the only permissible question is one designed to confirm the applicant is at least 18 years of age or older (otherwise the child labor law applies). An example of a question to be removed would be “what year did you graduate from school?”  
  • Social security number – since an applicant is not an employee yet, remove any ssn question as this could lead to a violation of an employer’s violating the duty to protect personal identifier information under the data security law.
  • Lie detectors - All applications for employment within the commonwealth shall contain the following notice which shall be in clearly legible print: ''It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability.''
As part of the review, make sure your employment application seeks only the information necessary to determine whether the person is qualified for the position in question. 
AIM has employment applications available for purchase on its online resource center. 
 
Members with questions about this or other HR-related issues may contact the AIM Hotline at 1-800-470-6277.
 
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