Massachusetts Background Check Laws

Massachusetts's Ban the Box law, part of the CORI reform, prohibits employers from asking about criminal history on an initial job application. Employers can only inquire about criminal records after a candidate has been selected for an interview or has received a conditional offer of employment. This applies to all employers, public and private, with six or more employees. Furthermore, employers cannot ask about certain types of criminal records, such as misdemeanor convictions that occurred more than five years prior to the application date, first offenses for certain misdemeanors, or sealed/expunged records. (M.G.L. c. 151B, § 4(9) and M.G.L. c. 151B, § 4(9½))

Massachusetts's CORI law (M.G.L. c. 6, §§ 167-178) significantly overlaps with and adds to the federal FCRA. While the FCRA governs consumer reports, including background checks, the CORI law specifically regulates access to and use of criminal record information by employers. Employers must comply with both. The CORI law imposes stricter requirements on the use of criminal records, including specific notice requirements, a tiered access system for different types of records, and limitations on what can be considered. For instance, the CORI law restricts inquiry into certain older misdemeanor convictions and sealed/expunged records more stringently than the FCRA.

Massachusetts law prohibits employers from seeking a job applicant's salary history from the applicant or their former employers. Employers can, however, discuss salary expectations with the applicant and provide information about the position's compensation. (M.G.L. c. 149, § 105A)

Under the CORI law, employers generally cannot inquire about: (1) Misdemeanor convictions that occurred five or more years prior to the date of the application, unless the applicant has been convicted of any offense within that five-year period. (2) First offenses for certain misdemeanors. (3) Arrests that did not result in a conviction. (4) Cases that were dismissed or resulted in a 'not guilty' finding. (5) Sealed or expunged records. (M.G.L. c. 151B, § 4(9) and M.G.L. c. 6, § 172)

Massachusetts law provides for the sealing and expungement of criminal records. Employers are generally prohibited from inquiring about, or considering, sealed or expunged criminal records. Treating an applicant differently based on such records is a violation of the CORI law and anti-discrimination statutes. Employers must ensure their background check providers are aware of and comply with these restrictions. (M.G.L. c. 276, § 100A-100U)

Massachusetts's Ban the Box law is a core component of its fair chance hiring efforts. Beyond the initial application, if an employer decides to take an adverse action based on a CORI check, they must provide the applicant with a copy of the CORI report, inform them of the specific information that led to the potential adverse action, and give the applicant an opportunity to dispute the accuracy of the CORI or explain the circumstances. This is often referred to as a 'pre-adverse action' notice, similar to FCRA requirements but with CORI-specific nuances. (M.G.L. c. 6, § 172)