Massachusetts Criminal Justice Reform Law Amends Ban-the-Box Policy

Governor Charlie Baker signed the Massachusetts Criminal Justice Reform Law on April 13, 2018 which places further restrictions on employers that inquire about prior criminal records.  The new restrictions will take effect on October 13, 2018.

The new law adjusts the timeframes related to when an employer may seek information on a misdemeanor conviction. In the new law, an employer cannot inquire into 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. The new law also prohibits employers from asking an applicant about sealed or expunged criminal records or “anything related to a criminal record that has been sealed or expunged.”

In addition, if an employer uses an application for the purpose of seeking “information concerning prior arrests or convictions of the applicant,” the application must have the following statement regarding situations where applicants can indicate that they do not have a record: “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, new Section 100S addresses and limits the use of off-limits records in negligent hiring claims against employers, stating that “an employer or landlord 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 or landlord.”

What This Means to You

• This applies to all employers in Massachusetts.
• Starting October 13, 2018, employers cannot inquire into convictions for misdemeanors where the date of the conviction occurred three or more years ago.
• Employers cannot ask applicants about a criminal record that has been sealed or expunged.
• Employers must include the specified statement in all applications that are seeking criminal background information of the applicant. 

Senate Bill 2371 is available here:
http://d279m997dpfwgl.cloudfront.net/wp/2018/03/03-23CrimJusticeConfReport.pdf