Massachusetts Governor Charlie Baker recently signed Senate Bill No. 2371, “An Act Relative to Criminal Justice Reform,” into law. The law will go into effect October 13, 2018.  Among the Act’s extensive criminal justice reform provisions are several important modifications to the “Ban the Box” anti-discrimination laws, outlined below, which will further restrict Massachusetts employers’ ability to consider criminal history in making hiring decisions.

Massachusetts first enacted its “Ban the Box” law, Mass. Gen. L. c. 151B § 4(9½) in August 2010. The law prohibits employers from asking about any information related to a job applicant’s criminal record in the initial written application. In addition, pursuant to Mass. Gen. L. c. 151B § 4(9), employers are prohibited from requesting certain criminal record information from applicants at any point in the application process, even after receiving the initial written application. Specifically, employers may not request information from an applicant, either written or orally, regarding: (1) “an arrest, detention, or disposition regarding any violation of law in which no conviction resulted”; (2) a first conviction of a misdemeanor for “drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace”; or (3) any misdemeanor where the date of conviction or completion of incarceration “occurred five or more years prior” to the date of application for employment, unless the applicant has been convicted of any offense in that same period.

The Act Relative to Criminal Justice Reform includes the following amendments to the existing laws regarding the criminal record information that employers may request following the initial written application:

  • Decreased Time Period for Disclosure of Misdemeanor Convictions: Employers are prohibited from asking applicants, either written or orally, about any misdemeanor where the date of conviction or completion of incarceration occurred three (amended from five) years prior to the date of application, unless the applicant has been convicted of any offense in that same period.
  • New Restriction Regarding Sealed or Expunged Records: Employers are now additionally prohibited from asking applicants, either written or orally, about criminal records that have been sealed or expunged.
  • Required Notice Language to Applicants: Employers asking for criminal record information at any point during the application process now must include the following statement on the request form: “An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

In anticipation of these amendments, employers should work with counsel to review their employment application practices and procedures as they relate to applicants’ criminal records to ensure compliance with the new law.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.