Massachusetts Adjusts Limits on Inquiries into Job Applicants’ Criminal History

A provision in the Massachusetts criminal justice reform law signed by Governor Charlie Baker amends the state’s restrictions on the questions employers may ask a job applicant regarding the applicant’s criminal history during the hiring process. The new restrictions include an adjusted limitation on asking about misdemeanor convictions and a bar on asking about sealed or expunged criminal records.

Current Law
In 2010, Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act, which includes a “ban-the-box” component. Under Massachusetts law, employers are prohibited from asking for information about an applicant’s criminal history on an “initial written employment application (this is referred to as the “ban the box” provision).” After the “initial written employment application,” Massachusetts employers are still restricted on the types of criminal history questions they may ask applicants. Massachusetts employers may not ask for information about the following types of criminal history:

1. An arrest, detention or disposition regarding any violation of law in which no conviction resulted;
2. A first offense for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace; and
3. Any conviction of a misdemeanor where the date of conviction, or the completion of any period of incarceration resulting therefrom, occurred five or more years prior to the date of the application, unless such person has been convicted of any offense within the preceding five-year period.

Because these restrictions on criminal history questions are so specific, many employers use special, custom forms that describe these restrictions when asking permissible criminal history questions at a later date in the application process.
New Law
The new law changes the restrictions in two important ways.

1. The law adjusts the timeframes related to when an employer may seek information on a misdemeanor conviction. The new law states that employers may not ask for information about misdemeanor convictions (or incarcerations resulting therefrom) that occurred three or more years prior to the date of the employment application, unless the person has been convicted of any offense within the preceding three years. This has been reduced from the preceding five-year period.
2. The law prohibits employers from asking applicants for information about a criminal record that has been sealed or expunged.

Coverage: Employers with employees in Massachusetts

Effective: October 13, 2018

Action Required:

1. Review job applications and remove any questions about an applicant’s criminal history. Note: Our current model employment application does not contain any criminal history questions and can be found on FormSource/Forms Library.
2. Establish a protocol for obtaining and considering limited criminal history information, performing individualized assessments of that information and notifying any applicant who is disqualified because of criminal history. You can review our Background Checks Toolkit available on FormSource/Forms Library in the pre-employment section for more information.

As always, please be sure to contact your HR Business Partner if you have any questions.

* Produced in cooperation with Jackson Lewis P.C.