Update to Massachusetts’ Ban-the-Box Law

Posted by: Joshua Flexen

November 6, 2018

Massachusetts passed Bill S. 2371 An Act Relative to Criminal Justice Reform which, among a number of other reforms, amended the prior Ban-the-Box legislation by placing further restrictions on an employer’s inquiry into, and use of, criminal history in making employment decisions. Employers should take note of the important changes that went into effect October 13, 2018 as summarized below.

Updates to Ban-the-Box Law

The Basics

  • Location: Massachusetts
  • Legislation: Bill S. 2371
  • Type: Ban the Box
  • Effective Date: October 13, 2018

Key Takeaways

  • Employers are prohibited from inquiring into convictions for misdemeanors where the date of such conviction occurred three or more years prior to the date of such application for employment.
  • Employers are prohibited from inquiring about a criminal record or anything related to a criminal record that has been sealed or expunged.
  • Mandatory statement on any application used by an employer which seeks information concerning prior arrests or convictions from the applicant.

What has changed?

  • Under the new amendment, employers are prohibited from inquiring about any misdemeanor conviction(s) where the date of the conviction or, the completion of any period of incarceration resulting from the conviction, whichever date is later, occurred three or more years prior to the date of the employment application or a request for such information. Previously, the law allowed employers to inquire about misdemeanor convictions that were within 5 years of the employment application or request. Furthermore, in addition to being prohibited from asking about sealed records, employers are prohibited from asking about a criminal record that has been expunged.
  • Any application for employment used by any employer which seeks information concerning prior arrests or convictions of the applicant shall 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.”
  • Finally, bill lowers the number of years before an individual can seek a to have a criminal record sealed or expunged. The concern is that employers will now have less access to criminal history information and thus creates a greater risk that they can be held liable for negligent hiring or retention. However, the bill also makes it so that employers in a claim for negligence, shall be presumed to have no notice or ability to know of a record that: (i) has been sealed or expunged; (ii) the employer is prohibited from inquiring about pursuant to subsection 9 of section 4 of chapter 151B; or (iii) concerns crimes that the department of criminal justice information services cannot lawfully disclose to an employer.

Are there any exceptions?

Yes. An employer can inquire about misdemeanor convictions if the applicant or employee was convicted of any offense within three years immediately preceding the date of the employment application or a request for the misdemeanor information.

Recommendations

We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations. For additional details please refer to Bill S. 2371 and Chapter 151B Section 4 of the General Laws of Massachusetts). Seyfarth Shaw LLP has also provided an overview you may read here.

For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page.

Please note:  The information provided above is strictly for educational purposes.  It is not intended to be legal advice, either expressed or implied.  Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.