Amended Massachusetts Ban the Box Law Takes Effect October 13

Ban the Box

Written By ESR News Blog Editor Thomas Ahearn

On April 13, 2018, Massachusetts Governor Charlie Baker signed An Act Relative to Criminal Justice Reform (Senate Bill S.2371) to amend the state’s “Ban the Box” law and further restrict the ability of employers to consider the criminal history of job applicants during the hiring process. The Act – which takes effect October 13, 2018 – creates new employer obligations and includes the following amendments to the existing laws regarding the criminal record information that employers may request following the initial written application. Mass. Gen. L. c. 151B § 4(9) and Mass. Gen. L. c. 151B § 4(9½) are amended as follows. 

  • Decreased Time Period for Disclosure of Misdemeanor Convictions: Employers are prohibited from asking applicants, either written or orally, about any misdemeanor where the date of conviction or completion of incarceration occurred three (amended from five) years prior to the date of application, unless the applicant has been convicted of any offense in that same period.
  • New Restriction Regarding Sealed or Expunged Records: Employers are now additionally prohibited from asking applicants, either written or orally, about criminal records that have been sealed or expunged.
  • Required Notice Language to Applicants: An application for employment used by any employer which seeks information concerning prior arrests or convictions of the applicant shall 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 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.”

In 2010, Massachusetts became the second state in the nation after Hawaii to enact Ban the Box laws for both public and private employers to prevent them from requesting criminal record information on initial written employment applications. The Massachusetts Ban the Box law – which was enacted to help reform the state’s Criminal Offender Record Information (CORI) system – also prohibited employers from asking job applicants 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.

Massachusetts is also enforcing its Ban the Box law. On June 6, 2018, Massachusetts Attorney General (AG) Maura Healey announced her office had reached agreements with four national employers and issued warning letters to 17 other Boston area businesses found to be in violation of a “Ban the Box” provision in state law that prohibits employers from asking about criminal record information on an initial job application, according to a press release on Mass.gov website.

“Ban the Box” is a growing nationwide movement that seeks to advance job opportunities for people with prior criminal convictions by eliminating any inquiry into the criminal history of candidates on job applications, specifically the check box that requires candidates to disclose their criminal history. As of April 2018, more than 150 cities and counties as well as 32 states have passed Ban the Box laws in America. Cities with Ban the Box laws in Massachusetts include Boston, Cambridge, and Worcester.

Ban the Box laws have been passed in several states besides Massachusetts. Other states that have passed Ban the Box laws in America include Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Indiana, Illinois, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, Nevada, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

The fact that employers must comply with a myriad of overlapping local and statewide Ban the Box laws in the United States is one of the “ESR Top Ten Background Check Trends” for 2018 as selected by leading global background check firm Employment Screening Resources® (ESR). “Having mixed local and state Ban the Box laws without giving employers incentive or protections from negligent hiring lawsuits may hurt ex-offenders more than help them,” explains ESR founder and CEO Attorney Lester Rosen.

“Originally, Ban the Box laws were concerned with the initial application process. However, many of these laws have morphed into ‘Fair Chance’ laws that also impose processes for how criminal information is utilized. In other words, it is often no longer limited to just the application process, so a consistent statewide Ban the Box policy where employers are given some sort of immunity if they hire an ex-offender is likely the most effective means of giving people a second chance,” adds Rosen.

ESR also offers a white paper entitled “Ban the Box Now More than the Exception for Employers when Screening” to help employers better understand Ban the Bax laws and responsibilities and the “ESR Ban the Box Resource Guide for States, Counties & Cities” that gives an up to date list of states, counties, and cities in the U.S. with Ban the Box laws. The extensive ESR White Paper Library is available at www.esrcheck.com/Tools-Resources/Whitepaper-Library/.

ESR Ban the Box Resource Page

Founded by Attorney Lester Rosen in the San Francisco, California area in 1997, Employment Screening Resources® (ESR) is not a typical screening firm and does not intend to become one. ESR offers employers a Ban the Box Resource Page the contains complimentary whitepapers, infographics, and an interactive map updated with the latest Ban the Box laws for states, counties, and cities in America. The ESR Ban the Box Resource Page is available at www.esrcheck.com/Legislative-Compliance/Ban-the-Box/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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