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This Massachusetts Human Resources Manual is offered to you for free. Find state specific laws and regulations below.

Recruiting and hiring — Massachusetts

 An employer must navigate numerous legal minefields in the hiring process, from the initial recruitment of a candidate, through the interview and selection of a new employee. For this reason, an employer should be sensitive to unique issues that may arise in this early stage of the employment relationship.

How an employer can recruit applicants

An employer in Massachusetts has a number of avenues available to it for the recruitment of applicants, including, but not limited to:

  • internal job postings
  • employee referral programs
  • advertisements
  • the use of professional employment or temporary employment agencies
  • recruitment programs at educational institutions and community organizations
  • employment-related websites.

Advertising job openings

When an employer designs an advertisement to attract candidates, it should think carefully about its choice of words to avoid language that suggests a discriminatory bias. An advertisement that refers, even indirectly, to any of the following:

  • race/national origin
  • sex
  • sexual orientation
  • religion
  • age
  • disability

may give rise to a discrimination claim.

Example 1 - A court could find that an advertisement that seeks “recent college graduates” or “young and energetic” candidates has a discriminatory effect against older applicants.

Example 2 - An advertisement that mentions language ability (such as a reference to language proficiency) may be the basis for a discrimination claim by members of an ethnic group.

Example 3 - Under some circumstances, a disabled person may successfully argue that an advertisement seeking candidates “with big muscles” is discriminatory.

When an employer drafts an advertisement, it should clearly describe the position and any qualifications without reference to attributes associated with a particular race, gender or other unlawful classification. An employer may include specific job requirements in its advertisement; however, it should think carefully about the language it uses to convey such requirements.

A prudent employer will also include a statement in the advertisement that the employer is an “Equal Opportunity Employer.” For more information on the content of this type of statement, see Employment applications herein.

Job descriptions

The employer should create a job description that clearly defines the requirements and duties of the relevant position. A well-drafted job description has several functions:

  • The job description has the practical function of identifying the employer’s hiring needs.
  • The job description serves the important legal function of providing an objective standard upon which a prospective employee’s qualifications may be measured. In other words, if a candidate does not meet the criteria in a job description, she or he does not have the basis for a claim of unlawful discrimination. 
  • The job description is an important tool for the employer to later evaluate an employee’s performance. In the event that an employee disputes his or her performance evaluation, a job description may settle the issue by establishing the employer’s expectations. An employer should maintain a copy of an employee’s job description in his or her personnel record.

Employment applications

An employment application is a helpful starting point for an employer to find the most qualified candidates for a position. Whether an employer uses an application or some other means of collecting information, it should limit the information that it seeks from the candidate to that which is required for the position. Specifically, the employer should avoid questions about a prospective employee’s background or personal life if the information is not necessary for the position. For instance, an employer should not ask an applicant questions about marital status, living situation or family origin, among other issues.

Neither federal nor Massachusetts law requires that an employer use an employment application. However, Massachusetts law requires that employers collect certain information about their employees and an employment application is an efficient way to obtain the required information. 

If an employer does choose to use an employment application, Massachusetts law imposes certain requirements as to the form of the application.

Required information

If an employer uses an employment application, it must include certain information under Massachusetts law.

Specifically, state law requires that an employer include a statement that it is illegal for an employer to administer a lie detector test. Massachusetts law suggests the following language for this required statement:

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.

In addition, the employment application should include a statement that the employer is an equal opportunity employer and will not unlawfully discriminate against any candidate.

A proper equal opportunity employer statement includes language such as the following:

It is the company’s policy to provide equal opportunity for all applicants and employees without regard to race, color, religion, sex (including pregnancy), national origin, ancestry, age, disability, marital status or any other basis protected by federal, state or local laws. Any form of discrimination or harassment related to these factors is expressly prohibited. This policy applies to all terms and conditions of employment, including, but not limited to, hiring, placement, transfer, promotion, termination, layoffs, leaves of absence, compensation and training.

For affirmative action purposes, federal employers are required to ask applicants, both before and after the applicant receives an offer of employment, to identify their race/ethnicity, gender, and any disabilities. The applicant is not required to provide the requested information. Private employers are not required to ask applicants to provide any information concerning their race/ethnicity, gender, or disabilities.

Optional information

Personal employment data

Generally, an employment application may request the following information:

  • name
  • address and telephone number
  • Social Security number
  • date of hire
  • position sought and availability
  • past employment history

Note: Massachusetts law requires that when an employer requests information about an applicant’s employment history, it must also include a statement that the applicant may include in such history any verified work performed on a volunteer basis.)

  • references
  • name of immediate supervisors
  • reasons for leaving positions
  • educational history.

At-will employment statement

An employer should also include in the employment application a statement that the document does not represent an offer of employment and that the prospective employee’s employment with the company would be “at will.” The employer may want to include the following language:

This document does not constitute an offer of employment or contract. If you are hired by the company, your employment will be ‘at-will’ so that the company or you may terminate your employment at any time and for any reason.

Background checks

An employer may want to conduct background checks to determine applicants’ criminal history, credit status, or personal characteristics. Under Massachusetts and federal law, there are several requirements and limitations concerning an employer’s access to this information. See Chapter 05: Background checks.

Prohibited information

An employer must avoid certain topics in its applications, communications, and interviews with a prospective employee. Under a recently passed Massachusetts law, an employer may not ask about an applicants’ criminal background on the initial written employment application. Specifically:

  1. An employer may not, on its initial written application form, ask an applicant to provide or otherwise disclose his or her criminal offender record information.
  2. An employer may not, in connection with an application for employment, request any information (or discriminate against any person by reason of his failure to furnish such information) concerning any of the following:
    • an arrest, detention, or disposition regarding any violation of law in which no conviction resulted
    • a first conviction for certain misdemeanors
    • any conviction of a misdemeanor where the date of the conviction (or the completion of any period of incarceration resulting therefrom, whichever date is later) occurred five or more years prior to the date of the request for information, unless the applicant has been convicted of any offense within five years immediately preceding the date of the request.

An employer may, however, inquire about certain criminal information later in the job application process. For a detailed analysis of the new law, please see Chapter 04: Background checks.

In addition, a court may find that the following topics suggest discrimination on the part of the employer:

  • marital status
  • sex
  • parenthood
  • citizenship/national origin
  • days available to work (Massachusetts law prohibits an employer from imposing upon an individual as a condition of employment any terms or conditions that would unreasonably require the individual to forgo the practice of his or religion.)
  • economic status
  • physical or mental limitations in other occupations.

Further, under the Massachusetts Pay Equity Law, which went into effect on July 1, 2018, it is unlawful to seek the wage or salary history of a prospective employee or to require that a prospective employee’s prior wage or salary history meet particular criteria. There are two exceptions to this rule, however:

  1. if a prospective employee has voluntarily disclosed salary or wage history, a prospective employer may confirm the information
  2. if an offer of employment with compensation has been negotiated and made to the prospective employee, a prospective employer may seek or confirm the prospective employee’s wage or salary history.

Employers should also consult the Massachusetts attorney general’s detailed guidance on the Pay Equity Law and its requirements, issued on March 1, 2018. For more on the Pay Equity Law and the attorney general’s guidance document, please see Chapter 12: Discrimination.

Negligent hiring

In Massachusetts, an employer may be held liable for negligent hiring or retention when its employee causes injury to a third party. Under Massachusetts law, an employer whose employees are brought into contact with members of the public in the course of the employer’s business has a duty to exercise reasonable care in the selection and retention of its employees. In addition, an employer may be held liable for hiring or retaining an employee when it knows or should have known that the employee is not suited for the particular employment. This claim arises most commonly when the employee is in a position that requires the employee to interact with children or otherwise vulnerable groups (such as teachers, home health aides, athletic coaches, camp counselors and municipal government employees). If a court finds an employer guilty of negligent hiring, the employer may be liable for substantial damages based on the amount of harm caused by its employee.

An employer must perform a reasonable investigation of a prospective employee to ensure that the employee’s criminal or disciplinary history does not conflict with the requirements of the position.

The court will specifically assess the following factors to determine an employer’s liability when an employee harms a third party:

• the nature and responsibilities of the position

• the thoroughness of the employer’s investigation

• the extent of prior conduct indicating relevant tendencies.

Under Massachusetts law, employers may access applicants’ and employees’ criminal record information through iCORI, which is an online Criminal Offender Record Information (iCORI) system. Employers may register to obtain iCORI information for a fee for the purpose of screening current and prospective employees. If an employer makes a decision to fire an employee or not hire an applicant within 90 days of obtaining iCORI information directly from the state, the employer may not be held liable for negligent or discriminatory hiring practices based on its reliance on iCORI.

Certain positions will require that the employer perform a more thorough investigation. An employer should be detailed and accurate in documenting its investigative policies and each of its investigations.

In addition, an employer’s prompt investigation and discipline in response to employee misconduct may be an effective defense to a claim of negligent hiring and retention.

How interviews should be conducted

The interview is a valuable part of the hiring process because it allows an employer to convey important information about its operations and it provides the employer with an opportunity to learn first-hand information about the applicant. 

To avoid potential discrimination claims during this stage, it is critical that an employer understand the types of questions that may and may not be asked during an interview. Ideally, employers should centralize the interview process by training specific individuals to conduct the interviews, such as members of the human resources department. 

Employers that do not have the resources to centralize the interview process should, at a minimum, conduct training and distribute checklists to its employees who interview applicants. The employer must make all interviewers aware of the differences between proper and improper inquiries in the interview setting. See, Proper and improper interview questions below.

Conducting the interview

To prepare for the interview, the interviewer should review:

  • the relevant job description
  • essential job functions
  • company policies
  • employment application
  • resume
  • references.

These documents will prepare the interviewer to ask specific questions that seek information from an applicant concerning employment history and job qualifications. When the interviewer conducts the interview, he or she should focus the questions on topics related to the applicant’s skills and qualifications for the position. The interview may also include questions that reveal the applicant’s character to determine whether the applicant fits within the organization.

Remote interviews

Remote hiring and interviewing has become increasingly common. Some special considerations when conducting remote interviews include:

  • Do all potential candidates have access to the technology being used to conduct the interview?
  • Is the web platform ADA-compliant?
  • What accommodations need to be offered to prospects with disabilities?
  • Is the interviewer prepared to handle technology issues during the interview?
  • Is the interviewer set up in a professional work environment free from individual distractions such as spouses, children, dogs, etc.?
  • Will interviews be recorded? If so:
    • Are all interviews being recorded or only those for select candidates? If only select candidates, ensure that no selections are made that could lead to claims of discrimination.
    • Has permission been granted from the candidates to record the interview?
    • How will the recording be retained to satisfy EEO recordkeeping requirements?

Interview notes

During the interview, the interviewer may wish to take notes regarding an applicant’s qualifications, performance, and demeanor. Employers may take notes about an applicant’s professional appearance, interpersonal communication skills, attitude, and other subjective factors concerning the applicant’s ability to perform the job in question. However, employers should be careful about the content of such notes because they will likely be subject to disclosure in any later lawsuit or charge of discrimination. 

Notes that directly or indirectly relate to an applicant’s protected status are unlawful. For instance, an interviewer who unwittingly records physical descriptors to serve as a reminder of the applicant (such as black, elderly) may create the inference that he or she is discriminating against the candidate because of that trait. The employer should only consider and record factors relevant to an applicant’s ability to perform the job. To this end, the employer should consider creating a standard interview template to give to its interviewers.

Proper and improper interview questions

An employer should carefully prepare its interview questions in advance. This chart that follows contains proper and improper questions on topics that commonly arise in the interview setting. As a general rule of thumb, the employer should avoid any questions about the applicant's salary history, or that seek information about the applicant’s protected class status. 

Address or duration of residence

Questions on this topic are generally proper.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Where do you live?
  • How long have you been a resident of this city or Massachusetts?

None

Arrest/criminal record

At the employment application stage, an employer may not ask any questions concerning an applicant’s criminal background. After the application stage, an employer may obtain criminal records concerning an applicant from the state’s criminal record database, iCORI. When the employer questions an applicant about his or her criminal record, the employer must give the applicant a copy of the records in its possession. 

Note:
An employer may not ask an applicant questions concerning arrests. The scope of permissible questions concerning criminal history is a tricky area of the law. Obtaining legal counsel before asking such questions is advisable. For more information, see Chapter 04: Background checks.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Have you ever been convicted of a felony involving violence or sexual assault? (When the position requires work with children.)

 

  • Have you ever been arrested?
  • Have you ever been convicted of possession of drugs? (When the position requires accounting services.)

Age/Birth date

An employer may determine whether an applicant is older than 18 years of age; however, it should avoid questions that seek to establish whether the applicant is over age 40. An employer should not require the applicant to produce proof of age, such as a birth certificate or license. It may request this information after hiring for an I-9 form or insurance purposes.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Are you at least 18 years of age or older? If not, please state your age.
  • How old are you?
  • When did you graduate from high school?
  • What are your children’s ages?
  • How old is your wife?

Birth control

Generally, questions about birth control are improper.

PROPER EXAMPLES

IMPROPER EXAMPLES

None

  • Do you plan to become pregnant?
  • How many children do you have?
  • What is your view on abortion?

Birthplace/Citizenship

An employer should not ask questions regarding an applicant’s birthplace or family origin.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • In what other cities, states and nations have you lived?
  • If you were hired, could you submit verification of your legal right to work in the United States? (This question is proper only if it is posed to all candidates.)
  • Are you a naturalized or native-born citizen?
  • What date did you acquire citizenship?
  • Are your family members citizens?

Childcare

Many employers incorrectly assume that a female applicant who has children will not be able to work long hours. In the interview process, it is important that the employer not pose questions to only female applicants about family status or whether the applicant is capable of meeting job demands. Not only does this practice discriminate against women, it unnecessarily limits the applicant pool.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Is there a reason why you could not work nights or weekends (if required for the position and posed to applicants of both sexes)?
  • On occasion, overtime work is required. Is there any reason why you would not be available (if posed to applicants of both sexes)?
  • How many children do you have?
  • What are the ages of your children?
  • Who cares for your children?
  • Who will care for your children if they get sick?

Disability

The Americans with Disabilities Act (ADA) allows pre-employment inquiries concerning the ability of an applicant to perform job-related functions. An employer may, therefore, ask an applicant to describe or demonstrate how he or she would perform specific job duties. However, Massachusetts employers are prohibited from asking an applicant whether he or she has any physical or mental disability. Moreover, pre-employment medical examinations are prohibited under Massachusetts law, except for conditional post-offer medical examinations that are subject to certain requirements.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Would you be able to create 50 widgets in an hour?
  • Are you able to type 80 words per minute?
  • Do you have dyslexia or any other reading impairment?
  • Have you ever had depression?
  • Do you have a physical impairment?

Driver’s license

Unless the employer has a job-related reason, it should not require an applicant to produce a valid driver’s license.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Could you show me some type of identification to identify yourself?
  • Do you possess a valid Massachusetts driver’s license and chauffeur license (if required for the position)?
  • Show me your Massachusetts driver’s license.

 

Economic status

An employer should not ask questions concerning an applicant’s current or past credit history, credit rating, bankruptcy or garnishment.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • A statement that credit checks are performed on all applicants for a certain position (if related to the job).
  • Have you ever filed for bankruptcy?
  • What is your credit score?
  • Do you have any child support obligations?

Education

An employer may inquire into the applicant’s academic, vocational or educational background. However, the employer should avoid questions related to the applicant’s sex, race or disability-based choices in education.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • What was your GPA in college?
  • Did you complete your Master’s in history?
  • Why did you fail advanced physics?
  • Have you attended automotive school?
  • Is that a school for the blind?
  • Why did you go to an all-women’s college?
  • Did you take any special education classes to complete that program?

 

Emergency contact

An employer may request the name and address of a person to be notified in case of an emergency. It is best to request this information after hire to avoid unnecessary inquiry into the applicant’s personal life. Requests for emergency contact information should be worded to avoid responses that contain unnecessary information.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Please provide the name and phone number of a person we may contact in the case of an emergency (if posed after hire).
  • If there were an emergency, who should we contact and how is that person connected to you?

Height/weight/appearance

An employer may ask height or weight questions after hiring for business-related reasons, such as for insurance purposes. Also, an employer may state guidelines for on-the-job attire that serves a reasonable business purpose. However, an employer should not ask questions concerning the height or weight of an applicant in an interview context unless clearly related to an applicant’s ability to perform the job. Avoid comments on personal appearance.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Will you be able to wear a pirate hat every day as required by our dress code?

 

  • I like your perfume – what is that?
  • You are going to have to lose 15 pounds to work the position at the front desk.

HIV status

An employer may not ask questions concerning an applicant’s HIV status.

PROPER EXAMPLES

IMPROPER EXAMPLES

None

  • Have you tested positive for HIV?

Language

An employer may inquire into an applicant’s oral and written fluency if it is required for the job. However, an employer should avoid inquiries into how an applicant acquired the ability to read, write or speak in a foreign language.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • How are your writing skills?
  • What language did you speak growing up?
  • Have you taken any ESL classes?

Marital status

An employer should avoid asking for an applicant’s marital status.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • What does your spouse do (if candidate already disclosed a spouse)?
  • Are you married?
  • Have you been divorced?

Military experience

An employer may inquire into an applicant’s military experience in the U.S. Armed Forces or National Guard or into an applicant’s particular branch of the military. However, an employer should avoid questions concerning the applicant’s military discharge unless it is related to the position.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • How long were you in the Army?
  • What was your rank?
  • What type of military discharge did you receive?
  • Have you ever been part of a foreign militia?

Name

An employer may ask questions to establish the applicant’s identity in order to look into the applicant’s employment history.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Have you ever been known by a different name?
  • Is additional information concerning a change of name, different name or nickname necessary to check your work record? If yes, explain.
  • What is the origin of your name?
  • Do you have a maiden name?

National origin

An employer should avoid questions to an applicant about his or her national origin.

PROPER EXAMPLES

IMPROPER EXAMPLES

None

  • What is your native tongue?
  • How did you acquire the ability to read and write in Spanish?
  • What nationality are your parents?

Organizations/activities

Inquiry into an applicant’s membership in job-related organizations is permissible when the employer considers it relevant to the ability to perform the job.            

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Are you part of associations that are connected to this line of work?
  • Please list all clubs, societies, lodges or organizations to which you belong.
  • Did I see you at a Narcotics Anonymous meeting last week?

Photographs

An employer may collect a photograph of an applicant after he or she is hired.

Residence

Questions about the address or applicant’s duration of residence in the area are proper. An employer should avoid questions aimed at the economic status of the applicant.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Where do you live?
  • How long have you lived there?
  • Do you rent or own your home?
  • What are your real estate taxes in that area?

Sex

The employer should avoid any questions concerning an applicant’s sex or perceived gender role.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • This job requires lifting 20-pound bricks every ten minutes. Will you be able to perform this task?
  • Have you always been a woman?
  • Who do you share your house with?
  • Are you the breadwinner?

 

Union membership or affiliation

An employer should avoid questions concerning an employee’s previous participation in unions.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Who were your prior employers?
  • Have you ever belonged to a union?

Salary history

An employer may not ask prospective employees about salary history. It is acceptable, however, to ask prospective employees about their salary requirements.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • If offered this position, what would your salary requirements be?
  • How much are you making per year with your current employer?

Work experience

An employer may make any inquiries into an applicant’s prior work experience.

Race or color

An employer should avoid questions or comments concerning an applicant’s race or color.

PROPER EXAMPLES

IMPROPER EXAMPLES

None

  • I can’t tell what your race is – where are you from?
  • Your last name sounds Portuguese. Are you Brazilian?

References

An employer may obtain the names of people who would be willing to provide a professional or character reference of the applicant. When an employer speaks to someone listed as an applicant’s reference, it should not ask any questions regarding the applicant’s protected class status.

 

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Who referred you to a position here?

 

  • Could you provide the name of someone who could attest to your character?
  • Could you provide the name of someone who could provide me information about your family background?

Religion or creed

An employer should avoid questions concerning an applicant’s religion or creed.

PROPER EXAMPLES

IMPROPER EXAMPLES

  • Is there any reason why you cannot work overtime or weekends?
  • What religious holidays do you observe?
  • Would your religion prevent you from working weekends?

Testing that is allowed before employment

Medical examinations

At the pre-offer stage, an employer may not require a job applicant to have a medical examination. However, an employer may condition an offer of employment on the results of an applicant’s medical examination, so long as the examination is conducted solely for the purpose of determining whether the employee is capable of performing the essential functions of a job with or without a reasonable accommodation (that is, some measure taken to assist the employee meet the job requirements). If an individual is not hired because a post-offer medical examination reveals that the applicant has a disability, the reason for not hiring that individual must be related to the job duties. Moreover, the employer must show that no reasonable accommodation existed that would have enabled the individual to perform the essential job functions. An employer may only conduct such an examination if all employees in the same job category are subjected to the same examination, not merely those applicants with known or perceived disabilities.

Confidentiality

An employer must keep its employees’ medical information confidential. The Americans with Disabilities Act (ADA) has narrow exceptions for disclosing certain information to supervisors and managers, first aid and safety personnel, and government officials who investigate ADA compliance. 

The ADA requires that an employer collect information concerning post-offer medical examinations and inquiries when they are used. However, the employer must be careful about its storage of this information. Under Massachusetts law, when medical records are stored electronically, the records must be encrypted to prevent the disclosure of personal information. Access to employee medical files should be restricted to those employees who need such information to perform their job duties (such as human resources professionals). Also, it is prudent to store paper medical files separately from an employee’s personnel record.

In addition, Massachusetts privacy law restricts the extent to which an employer may disclose information about an employee’s health. Although the law does not establish a clear category of material that may not be disclosed, employers are likely prohibited from disclosing any information concerning an employee’s health condition to a third party.

Applicant performance and aptitude testing

An employer may decide to use a pre-employment test as a way to predict the future job performance of an applicant. Although these tests are legal, employers must exercise caution in this area. Pre-employment tests that tend to screen out individuals within a protected class may give rise to a claim against the employer. If an employer notes that a performance test disproportionately screens out members of a protected class, it should carefully evaluate whether the test accurately measures job-related skills, and then change the test for future applicants. 

To avoid a disability discrimination claim, an employer must create a test that accurately measures the skills, aptitude, or other factors necessary for the position, but that does not seek to establish an applicant’s physical or mental impairments. For instance, a court may find a psychological test permissible so long as its purpose is to measure honesty, habits, or other relevant traits of an individual applicant. However, a test that screens for medical conditions, such as an applicant’s propensity for depression, would be unlawful. For more information see, Duty to accommodate applicants.

Scored tests

Employers often use scored tests to screen applicants. A scored test evaluates an applicant’s knowledge, skill or ability level. Employers use these tests to measure not only cognitive ability, but also personal characteristics such as integrity, initiative, conscientiousness, and responsibility.

Federal law authorizes employers to use scored tests. However, the employer must design these tests to be job-related. Furthermore, both federal and Massachusetts laws prohibit employers from applying any practices that discriminate against a group of individuals based on protected class status. Therefore, these tests should not create a bias toward any:

  • race
  • color
  • sex
  • religion
  • age
  • disability
  • other protected class.

Also, keep in mind that lie-detector tests are unlawful.

Accommodating applicants

Under the ADA, an employer’s duty to accommodate an applicant’s disability extends to the development, administration, and scoring of pre-employment tests. Specifically, the ADA requires that when an employer uses a pre-employment test, it must do so in a way that ensures individuals with disabilities have a fair opportunity to demonstrate the relevant job-related skills.

In other words, an employer must offer a reasonable accommodation to a disabled applicant to enable him or her to demonstrate the relevant qualifications. However, the ADA does not require that an employer provide an applicant with a reasonable accommodation or alternative method of testing if the pre-employment test is measuring skills that are necessary to perform an essential function of the job. 

The law permits an employer to request, in its test announcement or application form, that individuals inform the employer within a specified amount of time before the test period that they require a reasonable accommodation in order to take the test. The employer may also request documentation of the need for the requested accommodation. 

If the applicant first learns of his or her need for accommodation during the test administration, the obligation remains on the employer to provide an accommodation. However, an employer need only accommodate a qualified individual’s known physical or mental limitations. Therefore, the duty to provide a reasonable accommodation is not triggered until the applicant requests it from the employer. 

The employer must tailor the test accommodation to the particular individual’s needs.  For instance, an applicant with dyslexia may be entitled to an oral test, unless reading skills are required to perform an essential job function. Likewise, if an applicant has difficulty hearing, an employer may need to provide written questions to the applicant instead of conducting an oral interview. 

Other accommodations include:

  • ensuring accessibility to the testing site
  • providing the test in an alternative format
  • providing readers or interpreters
  • permitting extra time for the completion of the test
  • providing additional lighting or physical aids.

An employer should consult with the individual for suggested accommodations.

The employer does not have to implement an accommodation that would impose an undue hardship on the business. An undue hardship is a burden on the employer that is significantly difficult or expensive based on a variety of factors, including the nature and cost of the accommodation and the overall financial resources of the employer. 

If more than one possible non-hardship accommodation exists, the employer may select the simpler or less expensive accommodation so long as it provides meaningful equal employment opportunity. While the applicant’s preference may be one consideration, an employer is not required to provide the applicant’s accommodation of choice so long as the accommodation reasonably enables the applicant to perform the test. The employer should keep in mind, however, that the individual applicant’s active participation in identifying and selecting accommodations is an important factor in any lawsuit concerning accommodation.

Drug and alcohol tests

Federal law requires that applicants in certain safety-sensitive positions be tested for alcohol and drug use. These safety-sensitive positions are in specific industries, such as:

  • aviation
  • motor-carrier
  • railroad
  • maritime
  • mass-transit
  • pipeline

The Department of Transportation provides specific procedures for the testing of individuals in these positions. For more information, visit:

Outside of the listed industries, Massachusetts law only permits drug and alcohol testing by private employers under certain circumstances. Massachusetts courts recognize that information obtained from these tests constitutes private information of the employee. Therefore, to determine the lawfulness of a drug test policy, courts balance the employee’s interest in privacy against the employer’s competing interest in determining whether its employees are using substances. Under this test, Massachusetts courts have held that employers may drug test employees who work in safety sensitive positions, that is, where the employee has the potential of harming herself or someone else. However, Massachusetts employers are prohibited from testing employees who work desk jobs where the employer’s only motivation is to maintain a drug-free workplace. If an employer seeks to institute a pre-employment drug or alcohol policy, it must only apply its policy to positions where a substantial connection exists between the employee’s job duties and the perceived harm. Factors that affect this determination include the nature of the employer’s business and the nature of the employee’s duties.

Although not required, a prudent employer should obtain written consent from an applicant before submitting the applicant to a drug test. Although consent will not make an otherwise illegal drug test legal, it is a factor that a court may consider in its evaluation of the employer’s policy.

An employer should also institute procedural safeguards to ensure accuracy and protect the applicant’s privacy during a drug test. For instance, when an employer collects an applicant’s urine specimen, it should use an independent laboratory (at its own expense). The laboratory should provide the applicant with a private room and the technician should, if possible, stand away from the applicant during sample collection. Moreover, a court may find that a drug test that reveals the use of legal drugs – such as prescription medications – unlawfully infringes on an individual’s privacy. 

Like many employment actions, drug testing policies may trigger discrimination claims. If an employer does not equally administer a drug test policy, it could generate a claim of discrimination on the basis of a protected category. Accordingly, employers should implement drug testing policies to all employees in the same job classification, without regard to any other protected characteristic. Ultimately, whatever policy is in place, the employer must apply it fairly and equally to all employees in the particular job classification.   

Employers that receive federal contracts for $25,000 or more are subject to the Federal Drug Free Workplace Act. Under this law, the employer agrees to meet certain requirements (such as informing employees of the employer’s available rehabilitation programs) as a precondition of receiving a contract or grant from the federal government. 

Massachusetts employers must keep in mind that state law recognizes the rights of medical marijuana users and provides some protections for medical marijuana users in the workplace. Under the Act for the Humanitarian Medical Use of Marijuana, medical marijuana users are afforded certain protections from criminal prosecution or civil penalties for using medical marijuana. 

Massachusetts employers should also be aware that Massachusetts voters legalized recreational marijuana use through a referendum in 2016; and those who are 21 and older may legally possess, use, purchase, process or manufacture one ounce or less of marijuana and possess up to 10 ounces of marijuana at home. That does not mean that employers must permit or otherwise accommodate recreational marijuana use in the workplace, and it does not affect an employer’s authority to enact and enforce workplace policies restricting the use of marijuana by employees (subject to the limitations applicable to employees carrying medical marijuana registration cards, who may have some handicap discrimination protection under the Massachusetts Fair Employment Practices Act in light of the Supreme Judicial Court’s Barbuto decision, discussed in Chapter 09: Policies and procedures manuals and Chapter 13: Disabilities and reasonable accommodation.

Lie-detector tests

Massachusetts employers may not require or request as a condition of employment that an applicant take a lie-detector test, either within or outside of Massachusetts. “Lie-detector test” is defined broadly to include “a polygraph or any other device, mechanism, instrument, or written examination which is operated … to assist in or enable the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding the honesty of an individual.”

Fingerprinting

Although there is no federal or Massachusetts law that prohibits a private employer from requiring applicants to undergo fingerprinting, an employer would likely violate the Massachusetts privacy law by enforcing such a policy. A court would weigh an employer’s interest in obtaining this information (which, in most cases, would be weak) against the applicant’s interest in keeping this information private.

Use of artificial intelligence in the hiring process

On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a “Technical Assistance” (TA) document addressing compliance with ADA requirements and agency policy when using artificial intelligence (AI) and other software to hire and assess employees. The agency also published a short “Tips for Workers” summary of this guidance. Neither of these documents has the force or effect of law, nor are they binding on employers. The guidance is meant to be educational, “so that people with disabilities know their rights and employers can take action to avoid discrimination.” There are several take-aways regarding the Commission’s likely expectations and areas of focus when regulating the use of such tools in hiring or assessing employees:

Accessibility: Employers should account for the fact that on-line/interactive tools may not be easily accessed or used by those with visual, auditory or other impairment.

Accommodation: Barring undue hardship, employers should provide alternatives to the use or application of these tools if an individual’s disability renders the use of the tool more difficult or the accuracy of the tool’s assessment less reliable.

Accommodation, II: Beyond providing reasonable accommodations in accessing/using these tools, employers should ensure that the tools assess an individual in the context of any reasonable accommodation they are likely to be given when performing their job.

ADA vs. Title VII: The EEOC stresses that disability bias requires different design and testing criteria than does Title VII discrimination, such as access considerations and the potential for inadvertent disability-related inquiries or medical examinations.

Promising Practices: Noting that employers are responsible for ADA-violating outcomes even when a software tool is created or used by a third-party vendor or agent, the Commission provides examples of so-called “Promising Practices” that employers can engage in to demonstrate good-faith efforts to meet ADA requirements.

The TA document uses various illustrative examples of the tools the EEOC aims to regulate. These range from résumé scanners and virtual assistants/chatbots to video-interviewing software and software that tests an individual’s personality, aptitude, skills and “perceived ‘cultural fit.’” Employers using any of these tools in their recruiting, hiring and review of applicants and employees (which, by some estimates, is up to 83% of employers) should take careful note of the EEOC’s position as to where these tools may run afoul of the ADA.

The TA document focuses broadly on three themes, specifically, how the use of algorithmic decision-making may violate the ADA with respect to: (1) reasonable accommodation for applicants and employees; (2) where AI decision-making tools may “screen out” individuals with disabilities; and (3) where an AI-based tool may violate ADA restrictions on disability-related inquiries. You can access the document online in its entirety at:

https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence

Employment "at-will"

Massachusetts law presumes that every employment relationship is “at-will.” Employment “at-will” means that when an employee is hired for an indefinite duration, the employer or the employee may terminate the employment relationship for any lawful reason or for no reason at all, with or without notice. 

Unless the employee and employer enter into a specific oral or written agreement to the contrary, the court assumes that the employment relationship is at-will. Accordingly, the law does not require the terminating party to justify the termination of the employment relationship. Nonetheless, a prudent employer should identify the reason for the termination in advance of carrying it out and should document it in the event that the employee brings a claim alleging that the discrimination was based on an unlawful reason (such as discrimination or whistleblowing).

For employers, the employment at-will doctrine is important because it limits the claims that a former employee may bring against its former employer. Specifically, an employee generally may not sue an employer for breach of contract or wrongful discharge in Massachusetts as a result of his or her termination of employment unless the employer breached an employment contract of a definite duration or violated public policy.

Employment contracts

While an employer may wish to enter into contracts with certain employees, it should carefully consider the decision. If the employment relationship does not work, the employer may be forced to retain the employee or risk a breach of contract claim. Moreover, the employer is bound by the terms of employment in the contract and may not change those terms until the contract expires.   

To avoid any potential confusion about whether or not an employment relationship is “at-will,” employers who wish to create only at-will employment relationships with their employees should include specific written statements in all basic employment documents (including offer letters, employee handbooks, and handbook acknowledgment forms) that clearly state the employment relationship is “at-will.” 

In an employee handbook, the employer could include the following bold, capital-letter statement:

NEITHER THIS HANDBOOK NOR ANY OF THE PROVISIONS IN THIS HANDBOOK CONSTITUTE A CONTRACT OF EMPLOYMENT OR ANY OTHER TYPE OF CONTRACT.”

Offer letters

An offer letter is a common way for an employer to communicate information to its potential hires about an employment position. An offer letter contains information such as:

  • starting salary
  • start date
  • bonus information
  • other information about the prospective employee's compensation and benefits.

Offer letters also may be used to advise the potential hire of any remaining steps that must be taken or any obligations that must be met before employment may begin. 

Offer letters should be drafted carefully. If an employer uses language in an offer letter that suggests a specific duration for the employment relationship, such language might be interpreted to create an employment contract for a definite or fixed term. Based upon the letter, the employee may claim to have an enforceable contract with the employer. Employers should safeguard against such claims by including a specific “at-will” disclaimer in its offer letter and by avoiding language that suggests a specific duration of employment (such as annually). Employers also should not use language that suggests a permanent employment relationship.  

Phrasing that could give rise to an employment contract include:

  • “So long as you perform satisfactorily, you will have a job”
  • “We consider your employment to be part of an enduring employment relationship.”

Reporting new hires

New hire record

Employers who do business in Massachusetts must report to the Massachusetts Department of Revenue, within 14 days of hiring an employee, a report (in a form proscribed by the Department of Revenue) that contains the following information:

  • the employee’s name, address, and Social Security number (if an employer transmits this information electronically, the information must be encrypted according to Massachusetts data protection law)
  • the employee’s effective date of employment or effective date of reinstatement
  • the name, address, and federal employer identification number for the employer.

Wage records

In Massachusetts, an employer is required to report its employees' wages quarterly to the Department of Revenue. A copy of this report may be downloaded at:

An employer also must keep certain records for each worker who is covered by the Fair Labor Standards Act (FLSA). Although there is no specific form required for the records, the employer must include accurate information about the employee, his or her hours worked, and the wages earned. Specifically, the employer should maintain the following information:

  • employee's full name and Social Security number
  • address, including ZIP code
  • birth date, if younger than 19
  • sex and occupation
  • time and day of week when employee's workweek begins
  • hours worked each day and total hours worked each week
  • basis on which employee's wages are paid
  • regular hourly pay rate
  • total daily or weekly straight-time earnings
  • total overtime earnings for the workweek
  • all additions to or deductions from the employee's wages
  • total wages paid each pay period
  • date of payment and the pay period covered by the payment.