Ban the Box Laws in Massachusetts: Criminal History in Hiring

Federal law does not impose a blanket ban on criminal history inquiries during hiring. However, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and provides guidance that criminal history screening policies may have disparate impact on protected classes, particularly African American and Hispanic workers, and can constitute unlawful discrimination if not job-related and consistent with business necessity.

Under the EEOC's guidance (issued in 2012 and updated in 2021), employers should conduct individualized assessments when considering criminal history. The EEOC focuses on whether the crime is related to the job, how much time has passed since the conviction, and the nature of the offense. However, the EEOC does not categorically prohibit criminal history questions.

The Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) requires that if employers obtain criminal background reports through third parties, they must comply with disclosure and adverse action procedures. Employers who take adverse action based on criminal history must provide notice and opportunity to dispute.

Federal law enforcement and certain federal positions have specific criminal history requirements under 18 U.S.C. and agency regulations. The federal Fair Chance Act (49 U.S.C. § 40953) applies only to federal contractors and certain federal positions, not private employers generally.

Massachusetts General Laws chapter 149, section 24L establishes one of the strictest ban-the-box provisions in the nation. This law applies to all private employers with one or more employees, all public sector employers, and all employment agencies. There is no employer size threshold.

The Massachusetts ban-the-box law is substantially stronger than federal law because it creates an absolute timing prohibition rather than relying on disparate impact analysis. Employers cannot inquire about arrests, indictments, convictions, or the disposition thereof (including dismissals or not-guilty findings) on a job application or during any initial interview, or request that an applicant self-report such information. The law covers all criminal history, not just felonies.

Under Massachusetts law, employers may only inquire about criminal history after making a conditional offer of employment. A "conditional offer" means an offer of employment contingent on the applicant's criminal history meeting the employer's requirements. Once the conditional offer is made, the employer may inquire about criminal history using a form or interview. The employer must then evaluate the applicant's criminal history using factors including: (1) the nature and seriousness of the crime; (2) the time elapsed since the crime or release from incarceration; (3) the nature of the job sought; and (4) any information about rehabilitation or good conduct since the crime.

Massachusetts law also requires that if an employer makes a final determination to deny employment based on criminal history, the employer must: (1) provide written notice to the applicant; (2) include the specific factors considered; (3) include the criminal history information relied upon; and (4) provide at least 5 business days for the applicant to respond with evidence of rehabilitation or other mitigating information before the final decision is made.

Violations carry civil penalties up to $5,000 per violation. Employees may also pursue private civil actions for damages. The Massachusetts Attorney General enforces this statute, and the Massachusetts Commission Against Discrimination also has jurisdiction over criminal history discrimination claims under Massachusetts General Laws chapter 151B.

Massachusetts law provides limited exceptions to the ban-the-box rule. Employers may conduct background checks and inquire about criminal history before a conditional offer if the position involves direct unsupervised access to children, elderly individuals, or individuals with mental or physical disabilities. This exception applies to positions in schools, child care facilities, nursing homes, assisted living facilities, and similar settings.

Employers may also make criminal history inquiries without regard to timing if required by federal, state, or local law. For example, positions requiring security clearances, firearms licenses, or professional licenses (such as attorney, judge, or healthcare provider) may have statutory criminal history requirements that override state timing rules.

Certain industries operate under federal carve-outs: banking and financial services employers subject to background check requirements under 12 U.S.C. § 1867(c) or the Gramm-Leach-Bliley Act may have different requirements. Transportation Security Administration (TSA) determinations for airport security and transportation positions are exempt from state ban-the-box laws.

The law does not apply to applicants for: (1) elected office; (2) positions with law enforcement agencies; or (3) positions requiring security clearances for national defense purposes. Additionally, if an applicant volunteers criminal history information before being asked, the employer has received the information lawfully and may consider it.

Employers are not required to hire applicants with criminal histories if the criminal history is genuinely job-related, though the Massachusetts standard is stricter than federal law in requiring individualized assessment. At-will employment principles still apply; employers may refuse to hire for non-criminal reasons.

Step 1: Document Everything. Keep records of all job applications, interview notes, emails from recruiters, and any communications requesting criminal history information. If you received a job application form that asked about criminal history, take a screenshot or save a copy. Document dates of interviews and initial contact with the employer. Keep copies of any criminal records the employer may have reviewed before making a conditional offer (if you have them). Maintain a timeline of communications showing when you applied, when you interviewed, and when any offer was made.

Step 2: Determine Whether an Offer Was Conditional. Review any offer letter or verbal offer you received. Under Massachusetts law, a lawful criminal history inquiry occurs only after a "conditional offer of employment." If the employer asked about criminal history during the application stage or first interview without having made any offer, this violates the law. If an employer asked criminal history questions before informing you of any job offer, document this timing discrepancy.

Step 3: File a Complaint with the Massachusetts Attorney General's Office. Contact the Consumer Protection and Civil Rights Section of the Massachusetts Attorney General at (617) 727-8400 or submit a complaint through the official website at mass.gov/ago. Include: (1) the employer's name, address, and contact information; (2) your name and contact information; (3) the job title or position you applied for; (4) the date of the job application and interview; (5) how and when the employer requested criminal history information; (6) copies of the job application, interview notes, or other evidence showing the violation; and (7) the outcome of your application. There is no filing deadline for complaints to the Attorney General, but filing promptly preserves evidence and allows investigation.

Step 4: Expect the Investigation Process. The Massachusetts Attorney General's office will investigate your complaint, typically within 30-90 days. Investigators may contact the employer for their response and records. You may be asked for additional information. The investigation may result in the Attorney General issuing a civil demand or filing suit if multiple violations are found. Investigations are often confidential, and you may not be informed of investigative actions. If the Attorney General finds a violation, they may impose penalties up to $5,000 per violation.

Step 5: Consider Filing with the Massachusetts Commission Against Discrimination (MCAD). You can file a discrimination complaint with the MCAD under Massachusetts General Laws chapter 151B, section 4 within 300 days of the violation. File at the MCAD regional office closest to you or submit online at mass.gov/mcad. Include the same documentation as above. The MCAD investigates and may refer to hearing before an administrative law judge if probable cause is found. MCAD cases can result in reinstatement, damages, and attorney fees.

Step 6: Consult an Employment Law Attorney. If the violation is clear and documented, consider consulting an employment law attorney who handles discrimination and employment rights cases. You may have a private right of action to recover damages including compensatory damages (lost wages, emotional distress) and potentially punitive damages. An attorney can also advise whether you have related claims under other laws (e.g., race discrimination if the ban-the-box violation disproportionately affected you based on protected class). Many employment attorneys in Massachusetts work on contingency for strong cases. Contact the Massachusetts Bar Association Lawyer Referral Service at (617) 742-0904.