Under Massachusetts law, employers are prohibited from asking for information about an applicant's criminal history on an "initial written employment application" (this is referred to as the "ban the box" provision).
After the "initial written employment application," Massachusetts employers are still restricted on the types of criminal history questions they may ask applicants. Massachusetts employers may not ask for information about the following types of criminal history:
- An arrest, detention, or disposition regarding any violation of law in which no conviction resulted;
- A first offense for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; and
- Any conviction of a misdemeanor where the date of conviction, or the completion of any period of incarceration resulting therefrom, occurred five or more years prior to the date of the application, unless such person has been convicted of any offense within the preceding five-year period.
Because these restrictions on criminal history questions are so specific, many employers use special, custom forms that describe these restrictions when asking permissible criminal history questions at a later date in the application process.
The new law which goes into effect on October 13, 2018 changes the restrictions in two important ways.
First, the law adjusts the time frames related to when an employer may seek information on a misdemeanor conviction. The new law states that employers may not ask for information about misdemeanor convictions (or incarcerations resulting therefrom) that occurred three or more years prior to the date of the employment application, unless the person has been convicted of any offense within the preceding three years. This has been reduced from the preceding five-year period.
Second, the law prohibits employers from asking applicants for information about a criminal record that has been sealed or expunged.
Following the latest amendments, Massachusetts employers that ask questions regarding criminal history after the initial written employment application as part of their hiring practices and procedures should plan to adjust these questions, if necessary, and ensure key employees in the hiring process are educated about the new limitations.
Attorney Renee Lazar is available to answer inquiries regarding the new law. Call 978-844-4095 to schedule a FREE one hour no obligation consultation should you have questions regarding your employment.