Strict Updates to Massachusetts’ `Ban the Box’ Law

02 January 2019 Labor & Employment Law Perspectives Blog
Author(s): James M. Nicholas

In 2010, Massachusetts was one of the first jurisdictions to adopt a “Ban the Box” law, which prohibits employers from asking about an applicant’s criminal record on an employment application. The purpose of these laws is to help applicants with criminal records overcome certain barriers in obtaining employment.

In addition to the prohibition regarding criminal background questions on employment applications, Massachusetts employers are also prohibited from requesting certain criminal background information at any point during the application process. Specifically, employers may not ask about (i) any arrest, detention, or disposition that did not result in a conviction, (ii) a first offense for a misdemeanor for drunkenness, simple assault, speeding, minor traffic violations, and disturbing the peace, and (iii) any misdemeanor in which the conviction or completion of incarceration occurred more than five years prior.

In April of this year, Massachusetts Gov. Charlie Baker signed a new criminal justice reform bill into law. The reform bill, which went into effect on October 13, 2018, altered Massachusetts’ “Ban the Box” law in three significant ways.

First, the five-year period for the disclosure of misdemeanor convictions has been reduced to three years. This means that employers may not ask about misdemeanors in which the conviction or completion of incarceration was completed more than three years prior to the date of the employment application.

Second, employers are now prohibited from asking applicants, either in writing or orally, about a criminal record that has been sealed or expunged.

Finally, when requesting criminal record information from an applicant, employers must now include the following language regarding expunged 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.”

Massachusetts employers and nationwide employers who hire in Massachusetts should review their hiring policies and practices to ensure they are not asking about criminal record information too early in the hiring process. In addition, employers should be sure to revise any criminal record request forms to include the new requisite language. And, even for those employers without Massachusetts’ interests, this is a good time to review employment application documents and procedures to ensure compliance with the country’s patchwork of “Ban the Box” laws.

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