Impending Necessary Ban-the-Box Updates for Criminal Record Inquiries in Massachusetts and San Francisco

by Littler
Contact

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.

 

Footnotes

1 See Carie Torrence, Massachusetts Becomes the Second State to "Ban the Box" on All Employment Applications, Littler Insight (Aug. 11, 2010).

2 See Christopher Kaczmarek, Carie Torrence, and Joseph Lazazzero, Massachusetts Employers Face New Obligations When Conducting Background Checks Involving Criminal History Records, Littler Insight (Mar. 9, 2012).  

3 See Rod M. Fliegel and Allen P. Lohse, San Francisco is Likely to Amend its Ban-the-Box Law,  Littler ASAP (Mar. 29, 2018); see also Rod M. Fliegel, San Francisco's OLSE Issues "FAQs" On Fair Chance Ordinance, Littler Insight (Dec. 17, 2014). 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.