There are a number of protections available to individuals with criminal records when applying for a job. This guide answers some frequently asked questions about these rules.
Can an employer ask me about my criminal history on a job application?
Probably not. Under the “Ban the Box” law, most employers in Massachusetts are not allowed to ask you about your criminal record on a job application. There are a few limited exceptions for certain types of jobs in specific industries (for example, jobs at day cares and certain financial institutions) where employers can ask about criminal records on job applications because they are legally prohibited from hiring people with criminal records for those jobs.
Can an employer ask me to provide a copy of my own criminal record?
No. Employers are never allowed to ask you to provide a copy of your own criminal offender record information (CORI) or arrest records.
What types of criminal records can an employer ask me about during the hiring process?
As a general matter, employers are permitted to ask you about felony convictions and some misdemeanor convictions during the hiring process (after the initial job application). However, most employers are not allowed to ask you about any of the following at any point during the hiring process:
- Criminal cases that did not end in a conviction (including CWOFs);
- 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;
- Misdemeanor convictions where the date of the conviction or the release from incarceration was 3 or more years ago (unless there were subsequent convictions within the 3-year time period);
- Juvenile court records; or
- Sealed or expunged criminal records.
My conviction is sealed. Do I have to tell my employer about it if I am asked about prior convictions?
No. A job applicant whose criminal record is sealed or expunged does not have to provide an employer with any information about the sealed or expunged case. In response to any questions about prior convictions, a job applicant with no convictions other than a sealed or expunged case may answer that he or she has “No Record.”
Is my employer allowed to conduct criminal background check on me as part of the hiring process?
Yes, but employers must obtain your written permission before accessing your CORI records through the state system. Employers must follow additional steps if they use a private consumer reporting agency, rather than the state, to conduct criminal background checks.
Can an employer refuse to hire me because of my criminal records?
Employers may refuse to hire you based on your criminal record if there is some relationship between your criminal record and the work to be performed. However, employers cannot refuse to hire you based on your criminal record without first notifying you, giving you a copy of your CORI or criminal history information, and providing information to you about how to correct an inaccurate criminal record.
In addition, employers that automatically reject all applicants with criminal records may be violating state and federal civil rights laws because using criminal records in this way can have a disproportionate effect on protected groups, including racial minority groups. To avoid potential liability for civil rights violations, employers should conduct an individualized assessment before determining that a particular criminal record disqualifies an applicant for a particular job. Relevant 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, e.g., education/training; and
- Employment or character references and any other information regarding fitness for the particular position.
