Employee Background Check Laws in Massachusetts

The Federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., establishes the baseline for background check requirements nationwide. The FCRA requires employers to obtain written consent from job applicants before obtaining a consumer report (background check) and to provide applicants with a copy of the report and disclosure of their rights under the FCRA. If an employer intends to take adverse action based on information in a background check, the FCRA requires a pre-adverse action notice that includes a copy of the report and the applicant's rights, giving the applicant time to dispute information.

The EEOC enforces the FCRA and requires employers to ensure background checks do not have a disparate impact on protected classes. Employers using background checks must be able to show they are job-related and consistent with business necessity. The FCRA applies to all employers using third-party background check companies, though some private employers conducting in-house checks may be exempt from certain disclosure requirements.

Under federal law, employers can generally inquire about criminal history, but the EEOC guidance encourages individualized assessment of any criminal convictions rather than blanket exclusions. Federal law does not specifically restrict inquiries about arrests, but arrests without conviction generally cannot be considered in hiring decisions under Title VII of the Civil Rights Act and other federal statutes.

Massachusetts imposes significantly stricter requirements on background checks than federal law. Massachusetts General Laws Chapter 149, Section 52 explicitly prohibits employers from inquiring about arrests that did not result in conviction, sealed convictions, or misdemeanors not punishable by imprisonment. This includes on applications, in interviews, and from previous employers.

Massachusetts General Laws Chapter 149, Section 24L requires employers to provide applicants with a copy of any background check report obtained and a clear and conspicuous disclosure of the applicant's right to dispute the accuracy of information in the report. Before taking any adverse action based on information in the background check, employers must provide the applicant with a pre-adverse action notice that includes a copy of the report and information about the applicant's right to dispute inaccuracies. The applicant must be given a reasonable opportunity to respond, dispute, or explain any information that the employer intends to rely on.

Unlike federal law, Massachusetts law applies to all employers in the state, regardless of size. Massachusetts prohibits employers from asking about criminal history records that have been sealed, expunged, or not resulting in conviction, creating a broader protection than FCRA requirements. The state also mandates that employers must consider the nature of the crime, time elapsed since conviction, and the nature of the job when evaluating criminal history under Section 24L, requiring individualized assessment rather than blanket policies.

Remedies under Massachusetts law include civil actions for damages, civil penalties up to $500 per violation, and attorney's fees. The Massachusetts Attorney General's Office enforces these provisions, and workers may file complaints with the Attorney General or pursue private litigation.

Massachusetts law provides specific exceptions and limitations to background check protections. Law enforcement agencies and certain government positions are exempt from some restrictions on criminal history inquiries if the position requires a specific license or certification, though even in these cases the individualized assessment requirement applies. Positions with access to children, vulnerable populations, or handling sensitive information may justify broader inquiries into criminal history, but employers must still provide pre-adverse action notice and opportunity to dispute.

Background checks obtained for purposes other than employment decisions—such as research or administrative purposes—are subject to different FCRA requirements. Private employers conducting background checks in-house without using a third-party consumer reporting agency may have reduced disclosure obligations under the FCRA, though Massachusetts state law still applies.

Incidents on a background check that are inaccurate, such as dismissed charges, sealed records, or mistaken identity, are not exceptions to the protection—employers are prohibited from relying on these and must provide opportunity to dispute. Massachusetts does not recognize a business necessity exception to the prohibition on asking about arrests without conviction; employers cannot ask regardless of the job position.

Voluntary self-disclosure by an applicant of criminal history is not the same as an employer inquiry and does not trigger the same protections, though employers should not solicit this information. Bonding requirements for certain positions may create pressure to disclose, but employers cannot require disclosure as a condition of hiring when state law prohibits inquiry.

Step 1: Document Everything. Keep records of all communications with the employer regarding the job application, including the job posting, any applications submitted, written consent forms (or lack thereof) for background checks, and any communications indicating a background check was conducted. Save copies of any background check reports provided by the employer, pre-adverse action notices, and final hiring decision letters. If you were denied employment, document the stated reason and any discrepancies with what was actually in the background check. Photograph or screenshot digital communications. Keep a timeline of dates with specific actions taken by the employer.

Step 2: Internal Complaint Process. Before filing with an external agency, send a written request to the employer's HR department or hiring manager (certified mail with return receipt) asking for a copy of the background check report and inquiring whether your application was denied based on background check information. If a background check was run without written consent, state this clearly. Request a written explanation of any adverse action and the opportunity to dispute information in the report. Document the employer's response or failure to respond within 5-10 business days. This internal step is not required by law but creates important documentation of the violation and may prompt the employer to correct the error.

Step 3: File with the Appropriate Agency. For violations of Massachusetts state law (Chapter 149, Sections 24L and 52), file a complaint with the Massachusetts Attorney General's Office, Consumer Protection Division, at 1 Ashburton Place, Boston, MA 02108, or submit online at mass.gov/info-details/file-consumer-complaint. Include copies of your application materials, any background check report (redacted if necessary), the pre-adverse action notice or hiring decision letter, and your written request to the employer. The deadline for filing is generally longer under state consumer protection law; there is no specific statute of repose for background check violations. For FCRA violations, you may file with the Federal Trade Commission at reportfraud.ftc.gov, though the FTC does not investigate individual complaints but uses them to identify patterns.

Step 4: The Investigation Process. The Massachusetts Attorney General's Office will review your complaint and may contact the employer for their response. The investigation typically takes 30-90 days; the Attorney General's office may request additional documentation from you or the employer. If the Attorney General finds evidence of violation, they may pursue enforcement action against the employer, issue warnings, seek civil penalties (up to $500 per violation), or refer the matter for further investigation. You will be notified of the outcome. Investigation timelines are not guaranteed, and the Attorney General's office handles many complaints; be prepared for delays.

Step 5: Consult an Employment Attorney. If the employer has denied you employment and refused to provide a background check report or pre-adverse action notice, or if you believe the violation caused you damages beyond the job itself (such as emotional distress or other employment opportunities lost), consult an employment law attorney licensed in Massachusetts. An attorney can evaluate whether you have a private cause of action under Chapter 149 for civil damages and attorney's fees, or whether your claim falls under the FCRA for federal damages (up to $1,000 per violation in willful cases). Many Massachusetts employment attorneys offer free initial consultations and work on contingency. Contact the Massachusetts Bar Association Lawyer Referral Service at 617-742-0990 or visit www.massbar.org for recommendations.