Massachusetts Law on Employer Use of Arrest and Conviction Records

There are an estimated 65 million Americans with a criminal record. If you are among them, you might face an uphill battle in your job search. Surveys show that a majority of employers – a whopping 92%, according to one survey – check criminal records when hiring for some or all positions. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete in today's tight job market.

Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. Massachusetts law provides a number of protections for applicants with criminal records

Federal Protections for Applicants With a Criminal Record

There are two federal laws that provide some protections for applicants with criminal records.

The Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) addresses the problem of inaccurate records. It's bad enough to be turned down for a job based on your actual criminal record, but some people are rejected because their criminal background check contains another person's crimes or erroneously includes expunged records or arrests that didn't lead to conviction. Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, and even records that belong to someone else entirely.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:

• Get the applicants written consent ahead of time.
• Tell the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
• Give the applicant notice after the employer makes a final decision not to hire him or her based on the information in the report.

Firms that run background checks also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

Title VII

Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

• the nature and gravity of the criminal offense or conduct
• how much time has passed since the offense or sentence, and
• the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

Massachusetts Law on Use of Criminal Records

Massachusetts has among the strongest protections for applicants with criminal records. Some of these protections have been in place for a while; some just went into effect in 2012.

Massachusetts recently enacted a "ban the box" provision, which prohibits employers from asking about any kind of criminal record information on their initial written applications. If an employer wants to ask an applicant about his or her criminal history (for example, in an interview), the following rules apply:

• Employers may not ask about arrests that did not lead to conviction.
• Employers may not ask about first-time convictions for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace.
• Employers may not ask about misdemeanor convictions that are at least five years old, unless the applicant has another conviction in the last five years.
• An employer that asks about criminal history must include a statement that an applicant whose record has been sealed is entitled to answer that he or she has no criminal record.

Before an employer can ask an applicant about criminal history, the employer must give the applicant a copy of the criminal record information the employer has about the applicant. If the employer makes an adverse decision about the applicant, it also has to provide the applicant with a copy of the record, if it hasn't already done so.

An employer that conducts five or more criminal background checks annually has additional obligations, similar to those imposed by the FCRA. Such employers must:

• Notify the applicant of a potential adverse decision based on the applicant's criminal history
• Give a copy of the history to the applicant, along with the employer's policy on use of such information.
• Give the applicant information on the procedures to correct a criminal record.

An employer that gets its information on applicant criminal records directly from the state's Criminal Offender Reform Index (CORI) database – rather than from a third party vendor, such as a firm that conducts background checks for employers – enjoys certain legal protections. Such an employer is not liable for negligent hiring if it makes a hiring decision within 90 days of receiving the applicant's criminal record from the state. For example, if the employee injures a third party, who claims that the employer should have known the employee was dangerous, the employer can escape liability if it relied on the state's criminal database information in making its decision to hire the employee. Similarly, the employer cannot be held liable by the applicant for discrimination in hiring if its decision was legal based on the criminal record information received within the previous 90 days from the state. For instance, if the state's information is erroneous, but the employer relied on it to make a decision that would have been legal had the information been correct, the rejected applicant cannot sue the employer.