During a reformation of its employment discrimination laws in 2010, Massachusetts enacted its first ban the box law to discourage employers from asking potential employees about their criminal history during the background screening process. Consequently, Massachusetts applicants have enjoyed a significant degree of protection against discrimination for having criminal records. Effective as of October 13, 2018, the recent enactment of An Act Relevant to Criminal Justice Reform (the “Act”) amends this ban-the-box law to expand the level of protection for applicants and current employees. Massachusetts employers now face several new restrictions that significantly limit their ability to ask questions about their applicants’ and employees’ criminal histories.

Under Massachusetts’s revised ban-the-box law:

1. Employers may not request criminal history information on any application for employment.¹ There are exceptions to this prohibition, such as applications for positions for which any federal or state law creates a mandatory or  presumptive disqualification based on a conviction.

2. Employers who are exempt from the rule above must include the following statement on any application that seeks information concerning prior arrests or convictions:
   “An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

3. All Massachusetts employers are prohibited from asking about, maintaining records of, or basing any employment decision² on any of the following information:

• Arrests or prosecutions that did not lead to conviction;

• First convictions for certain misdemeanors, including drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace;

• Convictions for misdemeanors for which either the date of conviction or the completion of incarceration occurred more than three years ago, unless the individual was convicted of an additional offense during those three years;³ and

• Information related to criminal records that have been sealed or expunged pursuant to state law, which includes records sealed under the juvenile court system.

4. It is still lawful to ask about certain criminal history information after the initial application process.⁴  For example, an employer could ask about felony convictions after a conditional offer of employment has been made.

5. In a claim for negligence, such as for negligent hiring, an employer will be presumed to have no notice or ability to know of a record that falls under the categories of information listed in Section 3, above. This may come as a relief to employers who would otherwise be troubled by the dangers of liability for employing an applicant who has been convicted of a crime such as simple assault.

Violations of this law do not come cheap. The Attorney General’s office has cited companies for violations, requiring several to pay $5,000 fines. Employers who wish to avoid this possible scrutiny and financial penalty should consider working with their employment counsel to analyze their policies and procedures to address compliance with Massachusetts’s revised ban-the-box law.

 

References:
¹ Any employer that does business in Massachusetts and takes applications in the state are subject to these laws.
² Employment decisions include, but are not limited to, decisions involving hiring, transfers, promotions, discharges, etc.
³ The number of years was lowered from five to three in 2018.
⁴ Any form requesting information prior to an interview is considered to be part of the application for employment

---

This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk.  Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2019 ©Employment Screening Services, Inc. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of ESS.