New Limitations On Criminal History Screening To Go Into Effect In October

Client Alerts · September 19, 2018

New limitations on criminal history background checks will go into effect on October 13, 2018.  Massachusetts employers will be prohibited from asking applicants or employees about an expanded number of offenses and will also be required to include certain statutorily-mandated language in written requests for criminal information.

Since 1969, Massachusetts has set limits on the questions that employers may ask job applicants or employees about their criminal histories.  In addition, with the enactment of the “ban the box” legislation in 2010, Massachusetts has also restricted the timing of permissible criminal history inquiries until after an applicant has completed an initial written job application.

The amendments modify existing law in three ways:

  • The five-year look-back period for asking about misdemeanor convictions will change to three years.  Under current law, employers may not ask applicants or employees about misdemeanor convictions (or related periods of incarceration) that occurred five or more years before the application date or date of the employer’s request for information unless there is a subsequent conviction for any offense within the same five-year.  Under the amended law, employers will not be able to ask about misdemeanor convictions arising three or more years earlier unless there is a subsequent offense within the three-year period.
  • The amended law makes explicit that employers are prohibited from asking about criminal records that have been sealed or expunged pursuant to chapter 276.
  • The amended law requires employers to include the following statement in hiring-related documents that contain criminal history questions:

An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 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 may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.

There are no other changes affecting employment practices, and Massachusetts employers will continue to be restricted from asking about arrests that do not result in convictions or about first convictions for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace.

Employers should make sure that their hiring forms are revised to comply with the new requirements and that persons involved in the hiring process understand the new limitations on criminal history inquiries.

If you have any questions about the information presented in this alert, or would like to know more about how Prince Lobel can assist you in revising your company’s hiring forms or practices, please contact Laurie Rubin, the author of this alert, at 617.456.8020 or lrubin@princelobel.com, or Daniel Tarlow, the chair of the Employment Law Group, at 617.456.8013 or dtarlow@princelobel.com.