['Recruiting and hiring']
['Negligent Hiring / Retention']
06/11/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
Both the federal and state requirements do not cover most employer immunity from disclosure claims. However, a nursing home, infirmary, home health agency, or hospice program may disclose information to a prospective employer, upon request, about a current/former employee’s employment history and whether or not the employee was released and the reasons for the release, unless the information is knowingly false.
Arrest record inquiries
In Massachusetts, an employer may not ask about or keep records about arrests resulting in no conviction. Employers who ask about arrests on an application or in an interview must state that an applicant may answer “no record” if his/her arrest records are sealed records. Someone that has a right to withhold arrest information by law may state that he/she does not have an arrest record. Also, see “Pre-employment Inquiries Fact Sheet” published by the Massachusetts Commission Against Discrimination.
In Massachusetts elderly or disabled care and long term care facilities must obtain available criminal records from the Massachusetts criminal history systems board on applicants and volunteers for positions which will have contact with the elderly, disabled, or long term care residents, in accordance with Massachusetts General Law Chapter 6, Sections 172C and 172E.
This is more stringent than the EEOC’s Notice N-915-061 which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Massachusetts, an employer may not ask about or keep records about convictions that:
- Are first convictions for these misdemeanors: drunkenness, speeding, minor traffic violations, disturbing the peace, and simple assault;
- Are misdemeanors whereby the conviction date or the incarceration end date (whichever is later) is five or more years old.
Employers who ask about convictions on an application or in an interview must state that an applicant may answer “no record” if his/her conviction records are sealed records. Someone that has a right to withhold conviction information by law may state that he/she does not have an conviction record. Also, see “Pre-employment Inquiries Fact Sheet” published by the Massachusetts Commission Against Discrimination.
In Massachusetts elderly or disabled care and long term care facilities must obtain available criminal records from the Massachusetts criminal history systems board on applicants and volunteers for positions which will have contact with the elderly, disabled, or long term care residents, in accordance with Massachusetts General Law Chapter 6, Sections 172C and 172E.
This is different than the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Massachusetts Department of Labor and Workforce Development
Massachusetts Executive Office of Health and Human Services
Arrest record inquiries
Massachusetts Commission Against Discrimination
Conviction record inquiries
Massachusetts Commission Against Discrimination
Regulations
Employer immunity from disclosure claims
Massachusetts General Law Chapter 111: Section 72L 1/2 Immunity from liability as result of compliance with secs. 72F-72L
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVI/Chapter111/Section72L1~2
Arrest record inquiries
Massachusetts General Law Chapter 151B, Section 4, Unlawful practices
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151b/Section4
Massachusetts General Law Chapter 6, Section 172C, Dissemination of criminal offender record information to agencies employing or referring individuals to provide services to elderly or disabled persons
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter6/Section172c
Massachusetts General Law Chapter 6, Section 172E, Dissemination of criminal offender record information to long term care facilities
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter6/Section172e
Massachusetts General Law Chapter 276, Section 100A, Requests to seal files; conditions; application of section; effect of sealing of records
https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter276/Section100a
Massachusetts Code of Massachusetts Regulations Title 804 Section 3.02, Reference Chart Regarding Permissible Inquiries
Conviction record inquiries
Massachusetts General Law Chapter 151B, Section 4, Unlawful practices
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151b/Section4
Massachusetts General Law Chapter 6, Section 172C, Dissemination of criminal offender record information to agencies employing or referring individuals to provide services to elderly or disabled persons
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter6/Section172c
Massachusetts General Law Chapter 6, Section 172E, Dissemination of criminal offender record information to long term care facilities
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter6/Section172e
Massachusetts General Law Chapter 276, Section 100A, Requests to seal files; conditions; application of section; effect of sealing of records
https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter276/Section100a
Massachusetts Code of Massachusetts Regulations Title 804 Section 3.02, Reference Chart Regarding Permissible Inquiries
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.