May Massachusetts employers ask job applicants about their criminal histories?

Author: Kristy L. Avino Hirsch Roberts Weinstein LLP

It is illegal for a Massachusetts employer to inquire about an applicant's criminal record on a written job application form under the state's "Ban the Box" law. As a result, Massachusetts employers should remove all questions concerning criminal history from initial employment applications. The lone exception is for employers that are statutorily prohibited from hiring ex-offenders.

However, there is nothing to prevent employers hiring in Massachusetts from asking criminal history questions later in the selection process. Nonetheless, any employer in possession of an applicant's criminal record must give the individual a copy of the record:

  • Prior to any questioning; and/or
  • If it denies employment based on the criminal record.

Massachusetts employers also should be aware that they must have a Criminal Offender Record Information (CORI) policy if they conduct five or more criminal background investigations per year on applicants, full and part-time employees, interns or volunteers. Among other things, this policy must provide information for how individuals can correct erroneous criminal record information.