Governor Charlie Baker recently amended the Massachusetts Ban the Box law, which goes into effect on October 13, 2018. Most notably, the amendment reduces the time for inquiring about misdemeanors from five years to three years. As such, employers may not ask, either orally or in writing, about any misdemeanor conviction that occurred more than three years prior to the date of the employment application (unless the applicant was convicted of another crime within that same three year time period).

Employers will also now be prohibited from asking about criminal records that have been expunged, adding to the already prohibited activity of inquiring about sealed records. The amendment further adds a requirement to use the following statement on any application for employment, which seeks information about criminal history:

“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.”

The amendment goes a step further when dealing with sealed or expunged records in that it lowers the number of years before a person can attempt to have a record sealed or expunged, which will result in less access to criminal history information for employers. However, it does specifically add a presumption for employers. In a claim for negligence, employers will be presumed not to have notice or the ability to know about records (1) that have been sealed or expunged; (2) the employers may not inquire about under the anti-discrimination law; or (3) regarding crimes that the Massachusetts Department of Criminal Justice Information Services cannot lawfully disclose.

Best Practices Tip:  Massachusetts employers, as well as any employer that hires within the state, should review their employment applications and existing hiring policies and make any necessary modifications to ensure they are in compliance with the law, as amended, and include the appropriate statements regarding sealed and expunged records.

Full text of the Massachusetts law.

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