E-Alerts

Massachusetts Amends "Ban-The-Box" Law

Massachusetts employers should be aware of recently enacted changes to the Commonwealth's "ban-the-box" law, which limits employers' ability to ask job applicants about their criminal conviction history. These changes will go into effect on October 13, 2018.

In particular, the amendments reduce the time period over which applicants may be asked to disclose past misdemeanor convictions. Additionally, employers that use pre-hire forms asking applicants about criminal convictions must include specific disclaimer language in those forms.

Current Law

Under the "ban-the-box" law, which was enacted in 2010, Massachusetts employers are generally prohibited from inquiring about criminal history on initial job application forms. (Employers are exempted from this restriction if they are specifically prohibited under state or federal law from employing individuals who have been convicted of certain crimes.)

Further, employers that inquire about criminal history after the initial application stage are restricted in the questions they can ask applicants. Under current law, an employer generally may not ask about misdemeanor convictions that occurred more than five years previously, unless the individual was convicted of another offense within that five-year period. In addition, employers may not ask about first convictions for certain minor misdemeanor offenses, or about arrests or other dispositions that did not result in a conviction.

Changes To The Law

As of October 13, 2018, the following changes to the "ban-the-box" law will take effect:
 

• The time period over which Massachusetts employers may ask applicants about past misdemeanor convictions will be reduced from five years to three years. (As before, however, this time period may be lengthened where an applicant had a subsequent, intervening conviction.)

• Any form used by an employer that seeks information concerning an applicant's criminal history must include the following statement: "An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws 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 of the General Laws may answer 'no record' to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions."

• Massachusetts employers will be prohibited from asking applicants, whether in writing or orally, about criminal conviction records that have been sealed or expunged. (The amendments also reduce the time period an individual must wait before seeking to have his or her criminal record sealed or expunged.)

• Finally, Massachusetts employers will enjoy enhanced legal protection against potential negligent-hiring or negligent-retention claims based on criminal history to which they did not have access. An employer will be presumed not to have access to criminal records (i) that have been sealed or expunged, (ii) about which the employer is legally prohibited from inquiring, or (iii) that the Massachusetts Department of Criminal Justice Information Services cannot lawfully disclose to an employer. 

Recommendations For Employers

Before these changes take effect on October 13, 2018, Massachusetts employers should work with employment counsel to update all pre-hire forms that ask about criminal history to incorporate the reduced misdemeanor time period, and to include the mandatory statement regarding expunged and sealed records.

Further, employers should ensure that all supervisors, managers, and human resources employees are trained on these new requirements.

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If you would like our assistance with bringing your organization into compliance with these new requirements, or if you have any other questions about addressing criminal conviction records for job applicants, please feel free to contact us.