What are the requirements relating to advertising open positions?
All advertisements must be non-discriminatory on the basis of race, age, gender and other protected categories. Advertisements must specifically note whether applicants are sought to replace workers engaged in a labor dispute.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
An employer cannot make a criminal records inquiry in an initial application for employment. Thereafter, the employer may make inquiries regarding conviction of felonies (for any time period) or misdemeanors (within five years). An employer must conduct criminal record searches in a non-discriminatory manner. Employers cannot pick and choose which candidates to perform criminal records checks on. Further, any criminal records checks which utilize state criminal history records must comply with state law.
(b) Medical history
Most pre-employment medical inquiries and examinations are barred by the state’s Disability Discrimination Law. An employer can condition employment on a post-offer medical exam.
(c) Drug screening
Pre-employment drug tests are permissible if conducted with adequate procedural and privacy protections and in a non-discriminatory manner. Post-employment, reasonable suspicion and post-accident testing is also permitted. Random testing is permitted for employees in “safety sensitive” positions, and for those subject to random testing under federal law.
(d) Credit checks
Massachusetts has its own version of the federal Fair Credit Reporting Act (FCRA). In most situations, compliance with the FCRA will equal compliance with state law.
(e) Immigration status
No inquiries are stipulated beyond those allowed or required by federal law.
(f) Social media
There are no statutory restrictions. Legislation has been introduced to prohibit employers from requesting applicants’ social media passwords, but it is yet to be enacted.
Massachusetts prohibits employers from requesting or requiring applicants and employees to take lie detector tests. A notice to this effect must be included on employment applications. Further, effective July 1 2018 as part of the pay equity law, employers are not permitted to ask the wage and salary history of job applicants.
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