Massachusetts Background Check Laws

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Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has attended their first interview.

9. For an employer, himself or through his agent, in connection with an application for employment, or the terms, conditions, or privileges of employment, or the transfer, promotion, bonding, or discharge of any person, or in any other matter relating to the employment of any person, to request any information, to make or keep a record of such information, to use any form of application or application blank which requests such information, or to exclude, limit or otherwise discriminate against any person by reason of his or her failure to furnish such information through a written application or oral inquiry or otherwise regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information.

No person shall be held under any provision of any law to be guilty of perjury or of otherwise giving a false statement by reason of his failure to recite or acknowledge such information as he has a right to withhold by this subsection.

Nothing contained herein shall be construed to affect the application of section thirty-four of chapter ninety-four C, or of chapter two hundred and seventy-six relative to the sealing of records.

9 1/2. For an employer to request on its initial written application form criminal offender record information; provided, however, that except as otherwise prohibited by subsection 9, an employer may inquire about any criminal convictions on an applicant’s application form if: (i) the applicant is applying for a position for which any federal or state law or regulation creates mandatory or presumptive disqualification based on a conviction for 1 or more types of criminal offenses; or (ii) the employer or an affiliate of such employer is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either 1 or more positions, who have been convicted of 1 or more types of criminal offenses.

9A. For an employer himself or through his agent to refuse, unless based upon a bonafide occupational qualification, to hire or employ or to bar or discharge from employment any person by reason of his or her failure to furnish information regarding his or her admission, on one or more occasions, voluntarily or involuntarily, to any public or private facility for the care and treatment of mentally ill persons, provided that such person has been discharged from such facility or facilities and can prove by a psychiatrist’s certificate that he is mentally competent to perform the job or the job for which he is applying. No application for employment shall contain any questions or requests for information regarding the admission of an applicant, on one or more occasions, voluntarily or involuntarily, to any public or private facility for the care and treatment of mentally ill persons, provided that such applicant has been discharged from such public or private facility or facilities and is no longer under treatment directly related to such admission.

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Employers must provide a special adverse action notice if adverse action was taken due to any piece of information found on the received consumer report.

(a) Whenever credit or insurance for personal, family or household purposes, or employment involving a consumer is denied or terminated or the charge for such credit or insurance is increased either wholly or partly or whenever a consumer’s line of credit is reduced, except when the consumer is delinquent with regard to such line of credit, because of information contained in a consumer report from a consumer reporting agency, the user of the consumer report shall, within ten business days of its decision to deny or terminate such credit, insurance or employment, or to increase the charge for such credit or insurance, or to reduce a consumer’s line of credit, except when the consumer is delinquent with regard to such line of credit, notify such consumer in writing against whom such adverse action has been taken. Said notice shall be in a clear and conspicuous format, no smaller than ten point type, and shall contain the name, address, and toll-free telephone number of any consumer reporting agency which provided any consumer report which was reviewed or otherwise taken into account in the making of such adverse action and shall inform the consumer of his rights in substantially the following manner:

”You have the right to obtain a free copy of your credit report within sixty days from the consumer credit reporting agency which has been identified on this notice. The consumer credit reporting agency must provide someone to help you interpret the information on your credit report. Each calendar year you are entitled to receive, upon request, one free consumer report.

You have the right to dispute inaccurate information by contacting the consumer credit reporting agency directly. If you have notified a consumer credit reporting agency in writing that you dispute the accuracy of information in your file, the agency must then, within thirty business days, reinvestigate and modify or remove inaccurate information. The consumer credit reporting agency may not charge a fee for this service.

If reinvestigation does not resolve the dispute to your satisfaction, you may send a statement to the consumer credit reporting agency, to be kept in your file, explaining why you think the record is inaccurate. The consumer credit reporting agency must include your statement about the disputed information in a report it issues about you”.

(b) Whenever credit for personal, family, or household purposes involving a consumer is denied or the charge for such credit is increased either wholly or partly because of information obtained from a person other than a consumer reporting agency bearing upon the consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, the user of such information shall, within a reasonable period of time, upon the consumer’s written request for the reasons for such adverse action received within sixty days after learning of such adverse action, disclose the nature of the information to the consumer. The user of such information shall clearly and accurately disclose to the consumer his right to make such written request at the time such adverse action is communicated to the consumer.

(c) No person shall be held liable for any violation of this section if he proves by a preponderance of the evidence that at the time of the alleged violation he maintained reasonable procedures to assure compliance with the provisions of subsections (a) and (b).

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Effective July 1, 2018, employers are prohibited from inquiring, seeking, or obtaining an applicant’s salary history as a condition for employment.

The full text “An Act to Establish Pay Equity” can be found on Masschusetts’ Legislature website below.

https://malegislature.gov/Bills/189/S2119.pdf

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Employers may not consider an applicant’s “ex-offender” status when making an employment decision.

It shall be an unlawful practice and thereby deemed a violation of this Chapter for a person directly or indirectly to refuse to hire, employ, classify or upgrade, to bar or to discharge from employment, or otherwise discriminate against any person in the terms, conditions, or privileges of employment, including compensation, because of the race, color, sex, gender identity or expression, age, religious creed, disability, national origin, ancestry, sexual orientation, marital status, parental status, ex-offender status, prior psychiatric treatment, military status or source of income of such individual, unless based upon a bona fide occupational qualification. A person who asserts that a discriminatory employment practice is justified because of a bona fide occupational qualification which has not been certified as such by the Commission or by the Massachusetts Commission Against Discrimination under Chapter 151B of the Massachusetts General Laws shall have the burden of showing that the discrimination is in fact a necessary result of a bona fide occupational qualification and thatthere exists no less discriminatory means of satisfying the occupational qualification.

It shall further be an unlawful practice and thereby deemed a violation of this Chapter for any employment agency, directly or indirectly, to fail or refuse to classify properly or refer for employment or otherwise discriminate against any person because of the race, color, sex, gender identity or expression, age, religious creed, disability, national origin, ancestry, sexual orientation, marital status, parental status, ex-offender status, prior psychiatric treatment, military status or source of income of such person. An employment agency that specializes in the recruitment and placement of elderly or disabled employees shall be exempt from the operation of this section with respect to such specialized services for the elderly or disabled, provided that such specialized services not discriminate among the elderly or disabled on the basis of other discriminatory criteria.

Nothing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission, or participation to members of that religion, from giving preference in hiring or employment to members of the same religion, or employment limited to the elderly or disabled, provided that such employment shall not discriminate among the elderly or disabled on the basis of other discriminatory criteria.