Hiring in Massachusetts? Criminal History Questions Must Be Removed from Job Applications by November 4, 2010

by Heather Egan Sussman and Sabrina Dunlap

The Massachusetts Governor recently signed into law an act reforming the Commonwealth’s criminal offender record information system.  Under this new law, most Massachusetts employers will now be prohibited from asking about criminal history on an initial written job application.  Massachusetts is among a growing number of states to "ban the box" on job applications.

The most significant provisions directly affecting Massachusetts employers are as follows:

• The ban-the-box provision is effective November 4, 2010.  As of that date, employers are prohibited from asking job applicants about criminal history on the initial written job application with only limited exceptions.
• The law creates new “notice” requirements for employers effective February 6, 2012.  Under these new requirements, an employer in possession of criminal record information about an applicant must provide the information to the applicant prior to questioning the applicant about it.  In addition, similar to the requirements of the federal Fair Credit Reporting Act, if an employer decides not to hire an applicant in whole or in part because of the applicant’s criminal record, the employer must provide the applicant with a copy of the record.
• The “policy” provision of the new law is also effective February 6, 2012.  This provision requires employers that conduct five or more criminal background investigations in a year to implement and maintain a written criminal record information policy. 
• The law imposes penalties (including imprisonment for up to one year or a fine of up to $5,000 for an individual, $50,000 for an entity) for those who request or require a person to provide a copy of his or her criminal record except in situations authorized by law.  In addition, the law prohibits harassment of the subject of a criminal record, punishable by imprisonment of up to one year, or a fine of not more than $5,000.

Employers that plan to hire in Massachusetts should reexamine application forms and employment policies to ensure compliance with the new law.

For more information and analysis on the new law, click here.