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Guide Guide to Criminal Records in Employment and Housing

People in Massachusetts with criminal records often face unique challenges when re-entering society, including barriers to securing employment and housing.

Table of Contents

File a complaint

If you believe that your rights have been violated, file a complaint with the Attorney General’s Civil Rights Division. You can file a complaint online or call us at (617) 963-2917. You can also file a complaint in person by visiting the Civil Rights Division on the 11th floor of 100 Cambridge Street in Boston Monday through Friday between the hours of 9:30 AM and 4:30 PM.

Because the Civil Rights Division receives many complaints, the time it takes to review each complaint can vary. We will do our best to contact you within one week of receiving your complaint. If you have already filed a complaint with the Civil Rights Division and wish to check on the status of your complaint, call (617) 963-2917.

Employment

Several protections apply when individuals with criminal records seek employment.

What employers cannot ask:

State law prohibits most employers from asking about an applicant’s criminal history on an initial job application. Some employers are permitted to ask about an applicant's criminal history for jobs that involve working with young children or financial institutions

Employers cannot ask an applicant or employee to provide a copy of his or her own criminal offender record information (CORI) or arrest records

At any stage of the hiring process, state law prohibits most employers from asking about:

  • Criminal cases that did not end in a conviction

  • An arrest or detention (e.g. being held at a police station) that did not end in a conviction

  • A first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace

  • Convictions for a misdemeanor where the date of the conviction or the release from incarceration was 5 or more years ago, provided there were no subsequent convictions in the last 5 years

  • Juvenile records, except for juvenile cases that transferred from the juvenile court to an adult court and where the juvenile was tried as an adult

  • Sealed criminal records that can be reported as “no record”

The only time when an employer may ask about criminal convictions is:

  • If the applicant is applying for a position for which certain convictions disqualify the applicant under state or federal law

  • If the employer is prohibited by state or federal law from employing individuals who have been convicted of certain criminal offenses

  • State agencies must wait until the final stage of the hiring process to ask questions about criminal records

What employers are permitted to ask:

After the initial job application, employers can ask an applicant about:

  • Felony convictions at any time

  • Misdemeanor convictions that were not first-time convictions for drunkenness, simple assault, speeding, a minor traffic violation, an affray, or disturbing the peace

Employers must obtain an applicant’s written permission before accessing his or her CORI records.

If an employer makes an adverse decision based on an applicant’s CORI (e.g. a decision not to hire the applicant), the employer is required to give the applicant notice and provide the applicant with a copy of his or her CORI.

If an employer obtains criminal history information through a “consumer report” prepared by a consumer reporting agency and takes any adverse action based on that information obtained, the applicant is entitled to notice and a copy of the report, as well as an opportunity to correct/explain any errors.

Sealed records

A job applicant whose criminal records are sealed does not have to provide an employer with any information about the sealed case or charge(s) at any stage of the hiring process.

In response to any inquiries regarding a sealed criminal case or charge, a job applicant may answer that he or she has “No Record.”

Sealed criminal records cannot be used to disqualify an applicant for employment with the Commonwealth or any political subdivision thereof.

Individual review of criminal history information

Employers that have a policy or practice of automatically rejecting any job applicant with a criminal record may be violating state and federal civil rights laws. Using criminal records in this way can have a disproportionate effect on protected groups, including racial minority groups.

In most cases, employers should conduct an individualized assessment before determining that a particular criminal record disqualifies an individual for a particular job. Considerations generally should include:

  • The facts or circumstances surrounding the offense or conduct

  • The number of offenses for which the individual was convicted

  • Age at the time of conviction, or release from prison

  • Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct

  • The length and consistency of employment history before and after the offense or conduct

  • Rehabilitation efforts, such as education or training

  • Employment or character references and any other information regarding fitness for the particular position

Housing

Basic rights and restrictions

Housing providers must obtain an applicant’s written permission before accessing his or her CORI records. If a housing provider makes an adverse decision (e.g. a decision not to rent to the applicant) based on an applicant’s CORI, the housing provider must give the applicant notice and provide the applicant with a copy of his or her CORI. If a housing provider obtains criminal history information through a “consumer report” prepared by a consumer reporting agency and takes any adverse action based on information contained in the report, the applicant is entitled to notice and a copy of the report, as well as an opportunity to correct/explain any errors.

Housing providers cannot ask an applicant to provide a copy of his or her own CORI or arrest records.

Individual review of criminal record history

Housing providers that have a policy or practice of automatically rejecting any applicant with a criminal record could be violating state and federal civil rights laws. Using criminal records in this way can have a disproportionate effect on protected groups, including racial minority groups.

In most cases, housing providers should conduct an individualized assessment before determining that a criminal record disqualifies an applicant for housing. Relevant considerations generally should include:

  • The nature and severity of a conviction

  • The amount of time that has passed since the criminal conduct occurred

  • The facts or circumstances surrounding the offense or conduct

  • The age of the individual at the time of the conduct

  • Evidence that the individual has maintained a good tenant history before and/or after the conviction or conduct

  • Evidence of rehabilitation efforts

Individuals who have been convicted of (1) sexual offenses and subjected to a lifetime sexual offender registration requirement, or (2) drug-related criminal activity involving the manufacture or production of methamphetamine on the premises of federally-assisted housing, are permanently prohibited from admission to federally-assisted housing developments and are only eligible for admission to state-funded housing developments if they can establish sufficient mitigating circumstances.

Further resources

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