In 2010, Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act, which includes a “ban-the-box” component. Among other things, the law prohibits an employer from requiring an applicant to check a box if he or she has a criminal history. This applies to employers with 6 or more employees.
The law also prohibits an employer from requiring an applicant (or employee) to disclose the following specific types of criminal information:
- Arrests that did not result in a conviction
- First convictions for certain misdemeanors (drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace)
- Convictions for misdemeanors where the date of the conviction or completion of incarceration occurred five or more years from the date of the application, unless there was an intervening conviction.
On April 13, 2018, Governor Charlie Baker signed amendments to the law that place further restrictions on employers that inquire about prior criminal records. The new law takes effect on October 13, 2018. It has several important changes. First, the new law provides that an employer shall not inquire into convictions for misdemeanors where the date of the conviction occurred three or more years from the date of the application, unless there was an intervening conviction. This reduces the misdemeanor records that employers may permissibly consider, based on the age of the information, by two years.
Second, the new law prohibits an employer from asking an applicant about “a criminal record, or anything related to a criminal record, that has been sealed or expunged….”
Finally, any application used by an employer “which seeks information concerning prior arrests or conviction of the applicant” must include the following statement: “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 must continue to be mindful of the evolving laws that govern inquiries into, and the use of, criminal records. Jurisdictions with ban-the-box laws have only been increasing the restrictions on employers—as evident with the recent amendments in Massachusetts. Employers in Massachusetts should arrange for a privileged review of their written employment applications and related forms for potentially impermissible inquiries regarding criminal records.
As always, please contact the NARFA Team with any questions, or to simply learn more about our powerful Association that for almost 90 years, have provided best in class employee benefit solutions, administrative support, and much more for our member businesses.