In 2010, Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act, which includes a “ban-the-box” component.  Among other things, the law prohibits an employer from requiring an applicant to check a box if he or she has a criminal history.¹ The law also prohibits an employer from requiring an applicant (or employee) to disclose the following specific types of criminal information:  (i) arrests that did not result in a conviction; (ii) first convictions for certain misdemeanors (drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace); and (iii) convictions for misdemeanors where the date of the conviction or completion of incarceration occurred five or more years from the date of the application, unless there was an intervening conviction.²

On April 13, 2018, Governor Charlie Baker signed amendments to the law that place further restrictions on employers that inquire about prior criminal records.  The new law takes effect on October 13, 2018.  It has several important changes.  First, the new law provides that an employer shall not inquire into convictions for misdemeanors where the date of the conviction occurred three or more years from the date of the application, unless there was an intervening conviction.  This reduces the misdemeanor records that employers may permissibly consider, based on the age of the information, by two years.

Second, the new law prohibits an employer from asking an applicant about “a criminal record, or anything related to a criminal record, that has been sealed or expunged….”

Finally, any application used by an employer “which seeks information concerning prior arrests or conviction of the applicant” must include the following statement:  “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.”

Also on April 13, 2018, San Francisco amended its “ban-the-box” law or Fair Chance Ordinance (FCO).³ These amendments take effect on October 1, 2018, and, like the Massachusetts amendments, further restrict an employer’s ability to consider criminal record information.  The FCO lists specific types of convictions and information that employers can never inquire into, which are:  “(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section as an Unresolved Arrest; (2) Participation in or completion of a diversion or a deferral of judgment program; (3) A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code sections 1203.4, 1203.4a, or 1203.41; (4) A Conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system; or (5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing; or (6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction.”

These restrictions remain in effect.  The new law only adds to them, and provides that, as of October 1, 2018, employers in San Francisco cannot consider the following:  “A Conviction that arises out of conduct that has been decriminalized since the date of the Conviction, the date of the Conviction being the date of sentencing.  Examples of statutes that have decriminalized particular conduct include but are not limited to California Health and Safety Code Sections 11362.1 and 11362.2.”

Takeaways

Employers must continue to be mindful of the evolving laws that govern inquiries into, and the use of, criminal records.  Jurisdictions with ban-the-box laws have only been increasing the restrictions on employers—as evident with the recent amendments in Massachusetts and San Francisco.  Employers in Massachusetts and San Francisco in particular should arrange for a privileged review of their written employment applications and related forms for potentially impermissible inquiries regarding criminal records.