This is an update on our article published November 2010 regarding; Criminal Offender Record Information Administrative Procedure Reforms

In May, Massachusetts employers will have to follow certain steps when asking an applicant about her criminal history.

Last August, Gov. Patrick signed into law additional protections to persons with a history of criminal charges or convictions.

As of November 4, 2011, a potential employer cannot ask about criminal history on an initial application unless “(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 1 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 1 or more positions, who have been convicted of 1 or more types of criminal offenses.” MGL c. 151B § 4(9.5). The provision is commonly known as “Ban the Box.”

On May 4, 2012, most employers will have additional restrictions concerning an applicant’s criminal history as the interview process continues. These employers will have to certify that it is requesting the history for an authorized purpose and that it has permission from the applicant to make the request. MGL c. 6 § 172(30)(c). The new law also requires most employers in possession of a criminal offender record to provide the record to the applicant prior to questioning the applicant about his criminal history. MGL c. 6 § 172(30)(c).

If an employer makes a decision regarding employment based upon a criminal record, it will have to provide a copy of said record to the applicant. MGL c. 6 § 171A.

It is important to note that the statute explicitly does not prohibit an adverse decision based upon criminal history. The new law also includes record keeping and dissemination provisions that certain employers must follow. An employer’s failure to adhere to the new law can subject it to fines, sanctions, a charge filed with the Massachusetts Commission Against Discrimination or to civil litigation.