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Summary of differences between federal and state regulations
Arrest & conviction record inquiries
Applies to private and public employers. See Section 101 of Chapter 256 of the Acts of 2010.
Except in instances where they are prohibited by law from hiring individuals because of criminal convictions, all public employers, as well as private employers with six or more employees, are not allowed to ask whether an applicant for a job has been convicted of a criminal offense prior to an interview. During or after an interview, employers may ask about a criminal history, excluding all of the following:
- An arrest that did not result in a conviction;
- A criminal detention or disposition that did not result in a conviction;
- A first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace;
- A conviction for a misdemeanor where the date of the conviction predates the inquiry by more than 5 years; and
- Sealed records and juvenile offenses.
With certain exceptions, criminal records provided by the state may contain only:
- Felony convictions for 10 years following disposition;
- Misdemeanor convictions for five years following disposition;
- And pending criminal charges.
Prior to questioning an applicant or taking an adverse action based on criminal record information, an employer must provide the individual with a copy of the record. Any employer that conducts five or more criminal background investigations per year must establish and maintain a written criminal records policy.
State
Contacts
Employer immunity from disclosure claims
Massachusetts Executive Office of Health and Human Services
Arrest record inquiries
Massachusetts Commission against Discrimination
Conviction record inquiries
Massachusetts Commission against Discrimination
Regulations
Employer immunity from disclosure claims
Massachusetts General Law Chapter 111: Section 72L 1/2 Immunity from liability as result of compliance with §§72F-72L
Arrest record inquiries
Massachusetts General Law Chapter 151B, Section 4, Unlawful practices
Massachusetts General Law Chapter 6, Section 172C, Dissemination of criminal offender record information to agencies employing or referring individuals to provide services to elderly or disabled persons
Massachusetts General Law Chapter 6, Section 172E, Dissemination of criminal offender record information to long term care facilities
Massachusetts General Law Chapter 276, Section 100A, Requests to seal files; conditions; application of section; effect of sealing of records
Massachusetts Code of Massachusetts Regulations Title 804 Section 3.02, Reference Chart Regarding Permissible Inquiries
Conviction record inquiries
Massachusetts General Law Chapter 151B, Section 4, subsection 9 ½, Unlawful practices
Massachusetts General Law Chapter 6, Section 171A, Right of applicant to criminal history record prior to questioning or adverse decision; penalties for failure to provide applicant with criminal history information; maintenance of written criminal offender record information policy
Massachusetts General Law Chapter 6, Section 172C, Dissemination of criminal offender record information to agencies employing or referring individuals to provide services to elderly or disabled persons
Massachusetts General Law Chapter 6, Section 172E, Dissemination of criminal offender record information to long term care facilities
Massachusetts General Law Chapter 276, Section 100A, Requests to seal files; conditions; application of section; effect of sealing of records
Massachusetts Code of Massachusetts Regulations Title 804 Section 3.02, Reference Chart Regarding Permissible Inquiries
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.
Conviction record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.