Effective November 4, 2010 Massachusetts legislation made it illegal to ask applicants certain criminal information during an initial inquiry, such as on an initial written application. As such, employers have been advised to update their recruiting process and remove all inquiries concerning criminal history from their employment applications. This “Ban the Box” provision applies only to the initial inquiry. Since the new law does not prohibit inquiries about criminal history later on in the recruiting process, such as during an interview or on a supplemental application used after the initial inquiry, companies may want to consider use of a supplemental application.
The supplemental application should include the following questions and statements:
- Have you ever been convicted of a felony? If yes, please explain.
- Have you been convicted of a misdemeanor in the past 5 years, excluding first convictions for drunkenness, simple assault, speeding, minor traffic violations, and affray or disturbing the peace? If yes, please explain.
- Have you completed a period of incarceration within the past 5 years for any misdemeanor (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace)? If yes, please explain.
- If the answer to any of the above questions is yes, please state whether you were convicted more than 5 years ago for any offense (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace). If yes, please explain.
- Note – An applicant for employment with a sealed record on file with the commissioner of probation may answer “no record” with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. In addition, any applicant for employment may answer “no record” with respect to any inquiry relative to prior arrests or criminal court appearances and adjudication in all cases of delinquency or as a child in need of service which did not result in a complaint transferred to the superior court for criminal prosecution. A conviction will not necessarily disqualify you for the job for which you have applied.
- EEOC statement;
- Statement that information the applicant reported is true;
- At-will statement.
Keep in mind that the supplemental application must be implemented consistently among applicants. Additionally, any adverse findings should be discussed with the applicant.
