Praccal guidance at Lexis Pracce Advisor®
Lexis Pracce Advisor® oers beginning-to-end praccal guidance to support aorneys’ work in specic legal pracce areas.
Grounded in the real-world experience of expert praconer-authors, our guidance ranges from pracce notes and legal
analysis to checklists and annotated forms. In addion, Lexis Pracce Advisor provides everything you need to advise clients
and dra your work product in 14 dierent pracce areas.
1
Richard D. Glovsky
About the Author
Richard D. Glovsky, a partner in Locke Lord’s Boston office who co-chairs the Firm’s robust Labor and Employment Practice Group,
handles employment litigation, including class actions, wage and hour issues, and discrimination and retaliation claims. Dick
prosecutes cases for Fortune 500 companies and other businesses to protect their trade secrets and to prevent former employees
from violating non-competition and non-solicitation obligations. He also is a valued counselor on employment related matters. Dick is
recognized in both Chambers USA and The Best Lawyers in America for his work in labor and employment law. Dick is a former
Assistant United States Attorney and Chief of the Civil Division of the United States Attorney’s Office for the District of Massachusetts.
Draing Employment Applicaons in Massachuses
Massachuses Job Applicaon Requirements
Several Massachuses laws govern the informaon that employers must include in their wrien job applicaons.
The Massachuses Lie Detector Statute
The Massachuses Lie Detector Statute, Mass. Gen. Laws ch. 149, § 19B(2)(b), requires all job applicaons to contain the following
noce in clearly legible print:
It is unlawful in Massachuses to require or administer a lie detector test as a condion of employment or connued employment.
An employer who violates this law shall be subject to criminal penales and civil liability.
Law Governing Work History and Job Experience Inquiries, Mass. Gen. Laws ch. 149, § 52B
Job applicaons that inquire about an applicant’s work history or job experience must include a statement indicang that the applicant
may provide informaon about veried volunteer work. Mass. Gen. Laws ch. 149, § 52B.
The Sealed Record Act
The Sealed Record Act, Mass. Gen. Laws ch. 276, § 100A et seq., requires that when an employment applicaon seeks informaon
about an applicant’s prior arrests or convicons, the following statement must be included in the applicaon:
An applicant for employment with a sealed record on le with the commissioner of probaon may answer “no record” with
respect to an inquiry herein relave to prior arrests, criminal court appearances or convicons. An applicant for employment with
a sealed record on le with the commissioner of probaon may answer “no record” to an inquiry herein relave to prior arrests
or criminal court appearances. In addion, any applicant for employment may answer “no record” with respect to any inquiry
relave to prior arrests, court appearances and adjudicaons in all cases of delinquency or as a child in need of services which did
not result in a complaint transferred to the superior court for criminal prosecuon.
Mass. Gen. Laws ch. 276, §§ 100A, 100C.
Praccal guidance at Lexis Pracce Advisor®
2
Note that the Massachuses “Ban-the-Box” law, Mass. Gen. Laws ch. 151B, § 4 (9½), restricts inquiries about criminal history on an
inial job applicaon.
The Uniform Operaon of Commercial Motor Vehicles Act
The Uniform Operaon of Commercial Motor Vehicles Act, Mass. Gen. Laws ch. 90F, § 1 et seq., requires employers to request certain
informaon from applicants for commercial motor vehicle driver posions. Applicants must provide the following informaon, and
their answers must include informaon for the ten years prior to the date of applicaon:
• The names and addresses of the applicant’s previous employers for which the applicant was a commercial motor vehicle
driver
• The dates between which the applicant drove for each employer
• The applicant’s reason for leaving that employer
The applicant must cerfy that this informaon is true and complete, and the employer may require addional informaon. Mass.
Gen. Laws ch. 90F, §§ 4.A, 3.C.
Massachuses Job Applicaon Restricons
Unless required by a bona de occupaonal qualicaon, Massachuses employment applicaons may not include quesons that
would likely require the applicant to disclose his or her
• race, color, naonal origin, ancestry, birthplace or parents’ birthplace, ethnicity;
• religious creed or religion, religious obligaons or holidays;
• sex (including marital status discriminaon—804 CMR 3.01(4)(a)(5.)), gender identy, or sexual orientaon;
• children or child care arrangements;
• age, date of birth (although employers may ask if the applicant is under 18 (804 CMR 3.02);
• physical or mental handicap, drug or alcohol addicon, AIDs;
• admissions to mental health facilies;
• membership in the armed services (Mass. Gen. Laws ch. 33, § 13(b));
• genec informaon; and
• certain criminal history informaon. (Specically, in an inial wrien applicaon, an employer may not inquire into an
applicant’s criminal history, except when under federal or state law or regulaon informaon about criminal convicons (1)
creates a mandatory or presumpve disqualicaon or (2) prohibits employment by the employer. Mass. Gen. Laws ch. 151B,
§ 4(9½); Mass. Gen. Laws ch. 151B, § 4(9); 804 CMR 3.02.)
See 804 CMR 3.01; 804 CMR 3.02. See also Mass. Gen. Laws ch. 149, § 24A (prohibing age discriminaon against individuals age
40 and over) and the Massachuses Fair Employment Pracces Act, Mass. Gen. Laws ch. 151B, § 1 et seq. Note that while the
Massachuses Fair Employment Pracces Act prohibits discriminaon due to veteran status, employers may ask about veteran status
on employment applicaons. Mass. Gen. Laws ch. 151B, § 4(18).
Prevenng Implied Contract Claims in Massachuses
Pre-Hire Representaons – Avoiding Implied Contract Claims
Statements made during the hiring process about potenal salaries, job benets, a period of employment, or terminaon procedures
can lead to implied contract claims. See, e.g., Boothby v. Texon, Inc., 608 N.E.2d 1028 (1993). In that case, the court found that
Praccal guidance at Lexis Pracce Advisor®
3
an employer’s assurances about job security during pre-hire negoaons were sucient to establish a contract of permanent
employment. Employers should include disclaimers in applicaons and recruing materials to avoid a court nding that the employer’s
statements during the hiring process created a binding agreement with an employee.
Post-Hire Representaons – Avoiding Implied Contract Claims
A presumpon under Massachuses law is that all employment is at will, and the employer and employee are free to terminate
their work relaonship at any me. Jackson v. Acon for Boston Community Dev., Inc., 525 N.E.2d 411, 412 (Mass. 1988). However,
employee handbooks, oral assurances of job security by supervisors, and wrien company policies may give rise to implied contracts
that require employment for a denite term or discharge only for cause.
The existence of an implied employment contract is a factual issue to be determined under the circumstances of the case. Id. at 413-
414. An employee must establish all of the elements ordinarily necessary for the formaon of a contract in order to prove that an
implied employment contract exists. Biggins v. Hazen Paper Co., 953 F.2d 1405, 1422 (1st Cir. 1992), vacated on other grounds, 507
U.S. 604 (1993).
In O’Brien v. New England Tel. & Tel. Co., 664 N.E.2d 843 (Mass. 1996), the Massachuses Supreme Judicial Court ruled that a
personnel manual created an implied contract that altered the employee’s at-will status. However, the court denied the employee’s
wrongful discharge claim against the employer because she failed to follow the grievance procedures stated in the personnel manual.
See O’Brien v. Analog Devices, Inc., 606 N.E.2d 937 (Mass. App. Ct. 1993) (language in employee handbook was insuciently denite
to give rise to an implied contract of permanent employment); Evans v. T.J. Maxx, 2005 Mass. Super. LEXIS 41 (Mass. Super. Ct. 2005)
(employee could not reasonably construe terms of employee handbook as an implied contract).
Other cases demonstrate that an employer’s inclusion of an at-will disclaimer can help the employer prevent a court from ruling
that a handbook and other personnel materials created an implied employment contract with an employee. See Chilson v. Polo
Ralph Lauren Retail Corp., 11 F. Supp. 2d 153 (D. Mass. 1998) (applying Massachuses law, boldface disclaimers prevented employee
handbook from being construed as an employment contract) and Joyce v. GF/Pilgrim, Inc., 2003 Mass. Super. LEXIS 281 (Mass. Super.
Ct. 2003) (numerous disclaimers and other factors made it unreasonable to view an employee handbook as contractually binding on
the employer). Accordingly, employers should include and highlight disclaimers in employment materials to prevent implied contract
claims.
The gravitaonal pull of the case law in Massachuses is moving in the direcon of employee handbooks becoming contractual.
Employers need to carefully cra their policies and handbooks to convey the message they intend to convey to employees, while at
the same me avoid creang contractual rights in circumstances when it is not intended.
Checking References in Massachuses
Massachuses Law Requirements Concerning Job References
Mass. Gen. Laws ch. 111, § 72L1/2 protects nursing homes, home health agencies, and hospice program employers who provide job
references about current and former employees. Pursuant to this statute, these employers may disclose the employee’s employment
history, whether the employee was voluntarily or involuntarily released from service, and the reasons for such employee’s release
from employment and enjoy immunity from liability for the disclosure. An employer will lose its immunity under the law if the
employee can prove that the disclosure was false and made with knowledge that such informaon was false.
Massachuses employers have a common law privilege to provide truthful job references about former employees. In Conway v.
Smerling, 37 Mass. App. Ct. 1, (Mass. App. Ct. 1994), the court stated that “[i]n response to an inquiry about a former employee,
Smerling [the employer] had a privilege, if not a duty, to speak the truth even if the disclosure of the facts might negavely aect the
subject’s job prospects.” 37 Mass. App. Ct. at 7-8. An employer can lose this privilege if the employee proves that the employer made
the disclosure with a malicious move, recklessly disseminated the informaon, or acted with a reckless disregard for the truth. Bra
v. Internaonal Business Machines Corp., 392 Mass. 508, 517 (1984).
