Ban-The-Box Law Further Limited

Massachusetts recently enacted sweeping criminal justice reform. Included among the reformed laws is a further limitation on information an employer may seek from applicants regarding their criminal history. These changes become effective October 13, 2018 and enhance the protections for employees that became effective when Massachusetts amended its CORI (Criminal Offender Record Information) regulations on April 27, 2017. We provided a comparison of the old and new regulations in a prior post. Here we provide a discussion of the initial “Ban the Box” law and offer insights for employers regarding the law as it will exist once it becomes effective later this year.

Inquiry About an Applicant’s Criminal Record Then

In August of 2010, Massachusetts was one of the first states to enact legislation prohibiting an inquiry, in an initial written application for employment, about an applicant’s criminal record history. G.L. c. 151B, § 4(9½). Together with the provisions of G.L. c. 151B, § 4(9), employers were limited in what they could ask an applicant, at any stage of the hiring process including in an initial written application for employment, and could not request information from an applicant, either written or orally, regarding:

(1) “an arrest, detention, or disposition regarding any violation of law in which no conviction resulted”;

(2) a first conviction of a misdemeanor for “drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace”; or

(3) any misdemeanor where the date of conviction or completion of incarceration “occurred five or more years prior” to the date of application for employment, unless the applicant has been convicted of any offense in that same period.

As a result of the statute, many employers started using a written addendum, no sooner than an initial interview, reciting the limited questions that could be posed to the applicant himself or herself about their criminal record history.

Inquiry About an Applicant’s Criminal Record on October 13, 2018

Starting October 13, 2018, the amended G.L. c. 151B, § 4(9) will further limit the inquiries an employer may make of an applicant, no sooner than the interview stage, regarding the applicant’s criminal history.

The amendment reduces the period for inquiring about misdemeanors from five years to three years. This means that employers now may not ask about (whether orally or in writing) any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than three years prior to the date of the employment application, unless the person was convicted of another crime within the three years preceding the inquiry.

In addition to the already existing prohibition against asking about sealed records, employers now may not ask about a criminal record that has been expunged.

Furthermore, any form used by an employer that seeks information about an applicant’s criminal history must include the following statement about expunged records, in addition to the statement already required by G.L. c. 276, §100A concerning sealed 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.

Employers that use a form to solicit information about applicants’ criminal records must revise those forms to be consistent with the cited statutes, which effective October 13, 2018, will limit employers to the following questions, posed in the following manner:

Please read the following before answering:

An applicant for employment with a sealed record on file with the Commissioner of Probation may answer “no record” with respect to any inquiry herein relative to prior arrests, criminal court appearances, or convictions. In addition, any applicant for employment may answer “no record” with respect to any inquiry relative to prior arrests, court appearances, and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution. Further, 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.

  1. Have you been convicted of a felony? [ ] Yes [ ] No
    If yes, describe in full, including dates.
  2. Have you been convicted of a misdemeanor within the past three years (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace)? [ ] Yes [ ] No
    If yes, describe in full, including dates.
  3. Have you completed a period of incarceration within the past three years for any misdemeanor (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace)? [ ] Yes [ ] No
    If yes, describe in full, including dates.
  4. If the answer to Question No. 3 above is “yes,” please state whether you were convicted more than three years ago for any offense (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace)? [ ] Yes [ ] No
    If yes, describe in full, including dates.

If you are an employer and intend to seek information about applicants’ criminal histories from the applicants, you should be mindful of these changes and update your application forms by October 13, 2018. Employers also should train any personnel involved in hiring about what questions can and cannot be asked applicants and when. If you have any questions about the amendments and how to comply, contact one of Conn Kavanaugh’s experienced employment lawyers.

MARY (‘BETH’) E. O’NEAL

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