Massachusetts Ban-The-Box Law Undergoes An Update

As many of you know, in 2010, Massachusetts passed legislation which, in part, prohibits employers from including questions on job applications asking applicants to disclose their criminal history. This prohibition is often referred to as “banning-the-box.”  Notwithstanding this restriction, employers may inquire about an applicant’s criminal history, but must wait until later in the hiring process – after the initial job application – to do so.  However, employers that do seek to question applicants about their criminal history later down the line are prohibited from inquiring about:

  1. An arrest that did not result in a conviction;
  2. A first offense for certain misdemeanor convictions including disturbance of the peace, drunkenness, simple assault, minor traffic violations, disturbing the peace, affray, and speeding; and
  3. Misdemeanor convictions where the date of the conviction or completion of the incarceration stemming from the conviction occurred five (5) or more years before the date of the job application, unless the applicant was convicted of a crime during that 5-year period.

Notably, on April 13, 2018, Governor Baker signed An Act Relative to Criminal Justice Reform (the “Act”) that includes further restrictions on employers’ abilities to make criminal history inquiries. Specifically, the Act prohibits employers from inquiring into misdemeanor convictions where the date of the conviction or completion of the incarceration occurred three (3) or more years before the date of the job application – as opposed to the previous five or more year restriction on such inquiries – unless the individual was convicted of a crime during that 3-year period.

Furthermore, under the Act, employers are now prohibited from asking applicants about a criminal record, or anything related to a criminal record, that has been sealed or expunged.

Finally, if an employer intends to use a form to solicit information (after the initial job application) concerning an applicant’s prior arrests or convictions, it must include the following statement on the form:

“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.”

Similarly, if an employer inquires about an applicant’s criminal history during an interview, the employer should convey to the applicant that he/she is not required to disclose any prior arrests, criminal or juvenile court appearances or convictions that have been expunged.

Given the nuances regarding the questions an employer can ask an applicant about his/her criminal history during an interview, employers should consider simply not asking any criminal history-related questions during an interview. To the extent an employer seeks to ask an applicant about his/her criminal history, employers are well-advised to: (i) create a specific script of questions to ask and (ii) designate a specific individual from the organization who is responsible for asking such questions; proceeding in this regard will greatly reduce the risk of asking impermissible questions.

The Act’s provisions take effect on October 13, 2018.

About Brian Casaceli

Brian is an associate in the firm's Labor, Employment and Employee Benefits Group. He focuses his practice on representing employers in federal and state courts in Massachusetts, as well as before the Massachusetts Commission Against Discrimination, and the Equal Employment Opportunity Commission in defense of claims of discrimination, sexual harassment, wrongful termination, breach of contract, and wage payment violations. Brian also has experience in representing employers in wage and hour investigations by the U.S. Department of Labor and the Massachusetts Attorney General. Brian further counsels employers on day to day employer issues, and has experience drafting employer handbooks and other employer policies.
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