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New Massachusetts Criminal Reports Law and its Impact on Employers

On August 6th, Massachusetts Governor Deval Patrick signed into law a bill (Senate No. 2583) that significantly revises the Commonwealth’s Criminal Offender Record Information System. The new law will seal, after 10 years, records relating to felony convictions (a decrease from the current 15 years) and will seal, after 5 years, misdemeanor records (a decrease from the current 10 years). Employers will not have access to sealed records.

Perhaps just as significantly, the new law includes an amendment to M.G.L. ch. 151B (the Commonwealth’s Fair Employment Practices Law) that prohibits employers from inquiring about a job applicant’s criminal offender record information on an initial written application for employment. [1]The likely interpretation of the law will prohibit employers from including any questions about an applicant’s criminal record on initial written applications for employment. The law does permit employers to inquire about an applicant’s criminal record during an employment interview.

The most immediate practical impact on employers is two-fold: (1) most employers will need to revise their employment applications to delete inquiries about criminal convictions; and (2) with questions about criminal offender records prohibited on initial written applications, employers should consider obtaining (if not already doing so) an applicant’s criminal record prior to hire. Employers who do obtain criminal offender records prior to hire will need to ensure that they are compliant with all laws relating to access of these records, and that proper protocols are in place, should they make a criminal background check part of their hiring process. For example, if the employer uses a third party to obtain such records, the employer must be compliant with the requirements of the Fair Credit Reporting Act and its various notice requirements.

[1]The law does contain limited exceptions to this prohibition, including in those cases when an applicant is applying for a position for which any state or federal law or regulation creates a disqualification based on a conviction for one or more types of criminal offenses, or when the employer is subject to an obligation imposed by a state or federal law or regulation not to employ persons who have been convicted of one or more types of criminal offenses.

This advisory was prepared by Liam O'Connell of the Labor, Employment and Benefits practice at Nutter McClennen & Fish LLP.  For more information, please contact Liam or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.