Starting October 13, 2018, Massachusetts employers will be prohibited from inquiring about certain misdemeanor convictions and sealed or expunged records for employment purposes.
Massachusetts became the second state to enact a “ban-the-box” law nearly a decade ago. This law, which has now been adopted by many states throughout the U.S., required employers to remove from employment applications any question that asks a job candidate to self-disclose their criminal history. Instead, employers must wait until later in the hiring process unless the employer is legally prohibited from employing criminal offenders.
In addition to ban-the-box, the Massachusetts employment anti-discrimination law restricts what employers are allowed to ask, including:
– Arrests or prosecution that did not lead to a conviction
– A first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace
– Misdemeanors where the date of conviction or the end of any period of incarceration was more than 5 years ago, provided that there have been no subsequent convictions within those 5 years
– Any record of a court appearance which has been sealed under law
– Anything pertaining to a juvenile record
Updates Effective October 13, 2018
On April 13, 2018, Massachusetts Governor Charlie Baker signed a criminal justice reform bill which changed certain aspects of the law.
– The amendment reduces the 5 year period for inquiring about misdemeanors to 3 years.
– Lowers the number of years before an individual can seek to have criminal records sealed or expunged.
– Employers may not ask about a criminal record that has been expunged.
– Any form used by an employer that asks about a candidate’s criminal history must include the following statement about expunged records, in addition to the statement already required regarding sealed records:
“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.”
As these updates to the law mean that employers will have less access to a candidate’s criminal history, employers expressed concerns about being held liable for negligent hiring or retention based on criminal history which they no longer had access.
To address these concerns, a provision in the bill incorporates the following:
Employers will be presumed not to have notice (or the ability to know) about
i. records that have been sealed or expunged
ii. records about which employers may not inquire under the anti-discrimination law, or
iii. crimes that the Massachusetts Department of Criminal Justice Information Services cannot disclose to an employer.
This information is provided by JDP for informational purposes only and should not be considered legal advice. JDP is not legal counsel and cannot provide legal advice. Anyone reading this content should work with counsel to determine how legislative updates affect their employment screening program.