Massachusetts Ban the Box Update

Last month, Governor Charlie Baker signed An Act Implementing the Joint Recommendations of the Massachusetts Criminal Justice Review and An Act Relative to Criminal Justice Reform which will go into effect on October 13, 2018.

An Act Implementing the Joint Recommendations of the Massachusetts Criminal Justice Review includes, among several other reforms, adjustments to mandatory minimum sentences, witness protection reforms, and procedural protection changes.

An Act Relative to Criminal Justice Reform is aimed at recidivism in Massachusetts. This new law, among other reforms, amends the current Massachusetts Ban the Box law, further limiting the time period in which an employer can inquire about misdemeanor convictions. This new law also prohibits employers from asking about criminal records that have been sealed or expunged.

CURRENT LAW
In Massachusetts, M.G.L. c. 151B, § 4(9) prohibits employers from asking orally or in writing about:

(i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or
(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 such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information.

AMENDED LAW – Time Period Reduced for Inquiries Regarding Misdemeanor Convictions
This new law reduces the time period in which employers can inquire about misdemeanor convictions. Effective October 13, 2018, employers can only inquire about three years of misdemeanor convictions (unless the individual has been convicted of any offense within three years of the application date.)

Exceptions for Employers Still Exist
Keep in mind, under MGL c. 151B § 4(9 1/2) exceptions exist for an employer to request on its initial written application form criminal offender record information provided that: (i) the applicant is applying for a position for which any federal or state law or regulation creates mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or (ii) the employer or an affiliate of such employer is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either one or more positions, who have been convicted of one or more types of criminal offenses.

AMENDED LAW – Additional Statement Required for Applications
If an employer meets an exception requirement outlined above and seeks information concerning prior arrests or convictions on their application, this new law mandates the application 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.”

WHAT SHOULD EMPLOYERS DO?
Prior to the effective date, employers should:

• Identify employment application(s) or any other document(s) used in collecting criminal history information on an applicant;
• Review these forms for compliance to any criminal history inquiry limitations or restrictions in Massachusetts or any other applicable ban the box state or local laws;
• Include any disclaimers or statement language on applications as necessary; and
• Consult with their legal counsel or labor law attorney as necessary.