Amendments to Massachusetts Law Concerning Criminal History Inquiries
In October 2018, amendments to Massachusetts law concerning employer criminal history inquiries became effective. Under the previous version of the law, employers were prohibited from asking about: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted; (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; or (iii) any conviction of a misdemeanor where the date of the conviction or the completion of any period of incarceration resulting therefrom, whichever is later, occurred more than five years prior to the inquiry, unless the person had been convicted of any offense in the five years immediately preceding the inquiry. Also, employers seeking information about an applicant’s prior arrests or convictions have long been required to include specific language notifying the applicant that he or she may answer “no record” in response to an inquiry about a matter that is sealed and providing other disclaimers. Additionally, since 2010, Massachusetts employers have been prohibited from making any criminal history inquiries on the initial written employment application or prior to an interview.
The new law amends these restrictions in three ways:
- The time period for which employers may inquire about misdemeanors (item (iii) above) is reduced from five years to three years, unless the person has been convicted of any offense in the three years immediately preceding the inquiry.
- Employers are now expressly prohibited from asking about an additional category of criminal history information: criminal records that have been sealed or expunged.
- Employers must now include the following specific written notice with any request for criminal history information (in addition to the notice concerning sealed records and other disclaimers referenced above):
“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.”
Massachusetts employers should immediately update any criminal history inquiry forms to comply with the requirements of the amended law, and should educate employees involved in the hiring process about the new restrictions. We at Bello Welsh are available to help our clients comply with the amended law.