Last week, the Massachusetts Commission Against Discrimination issued a “Fact Sheet” regarding certain provisions of the Criminal Offender Record Information (CORI) Reform law that went into effect on November 4, 2010. Among other things, the CORI Reform law prohibits employers from asking applicants about their criminal history in an “initial written application.” While the MCAD’s Fact Sheet regarding this prohibition is not a formal regulation and does not have the force of law, it offers some guidance for employers regarding how the MCAD intends to enforce the law. However, the MCAD’s position is controversial and leaves many questions unanswered.

The Fact Sheet states that the MCAD will presume that any written application or form requesting criminal background information prior to an interview is a prohibited “initial written application.” Thus, the MCAD is taking the position that the first time an employer can ask an applicant about his or her criminal history is during or after an in-person or telephonic interview. Further, during or after that interview, the employer cannot ask about (1) an arrest that did not result in a conviction, (2) a criminal detention or disposition that did not result in a conviction; (3) a first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace; (4) a conviction for a misdemeanor which is more than five years old; and (5) sealed records and juvenile offenses. Effectively, employers are now required to have an interview if they wish to ask applicants questions about any criminal history, and they should use a form or a script that carefully describes what information is being sought.